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ELENA Weekly Legal Update (EWLU)

19 March 2021
 

Summary


European Court of Human Rights European Union United Nations National Developments ECRE

European Court of Human Rights


Feilazoo v Malta: The ECtHR finds multiple violations of detainee’s rights

On 11 March 2021, the European Court of Human Rights published its judgment in Feilazoo v Malta (application no. 6865/19).
 
After serving a sentence of twelve years in relation to drug related offences, the applicant was informed that he would be returned to Nigeria and held in an immigration detention centre until his removal. Following another incident, the applicant was sentenced to a further two year imprisonment, suspended for three years and a fine. His deportation was also ordered and on the same day, the applicant was transferred to a closed detention centre for immigrants.
 
The applicant complained about the conditions of his immigration detention under Article 3 ECHR. The ECtHR reiterated that it had already expressed concerns about the Safi Barracks detention facility. It placed significant emphasis on the 75 days that the applicant spent alone in a container without any access to natural light and with no possibility for exercise during the forty days of his isolation. It stated that although accommodation in a container might not necessarily violate Article 3, the limited light and ventilation are important factors in this assessment.
 
The ECtHR considered that the severity and duration of the isolation measure was excessive and it seemed that the authorities did not consider other alternatives. Moreover, it found it equally concerning that after this period of isolation the applicant was transferred to a different part of the facility where newly arrived asylum seekers were placed in Covid-19 quarantine. It was deemed that this could have posed a risk to the applicant’s health and therefore, could not be considered as complying with basic sanitary requirements. In that regard, the ECtHR considered that the conditions of the applicant’s detention violated Article 3 ECHR.
 
In relation to the applicant’s complaint that his detention was unlawful under Article 5 because his deportation was not feasible, the Court noted inter alia that the applicant was detained for fourteen months with a view to his deportation and there were no pending legal proceedings to delay the applicant’s deportation. The only step that the authorities took was to contact the Nigerian authorities for the issue of a passport and only one note verbale was shared in those fourteen months. The Court considered this could not amount to “diligent steps with a view to deportation” and as such, found a violation of Article 5(1) ECHR.

The ECtHR also considered that the applicant’s right to a petition before the Court had been hindered due to interference by the prison authorities with his communication, resulting in a violation of Article 34 ECHR.

An extended EDAL summary can be found here.

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Communicated cases against France

S.A. and F.A. v France (application no. 40429/19) concerns a Syrian couple who were homeless for several months. The application is based on Articles 3 and 6(1) ECHR. The Court asks whether the applicants’ living conditions, in particular during the period when they were sleeping rough, violate Article 3 ECHR. It further asks, in view of the particular circumstances of the proceedings, whether Article 6 is applicable and assuming so, have the guarantees attached to Article 6, in particular the right to the enforcement of judgments, been violated in this case.


Based on an unofficial translation by the EWLU team.

J.G v France (application no. 55993/20) concerns deportation proceedings against a Sri Lankan national. The applicant complains under Article 3 ECHR.
 
In this context, the ECtHR asks questions regarding whether domestic remedies have been exhausted and if so, whether the French authorities have taken account of the fact that applicant has refugee status. It asks whether the deportation is likely and if so, whether the applicant would be exposed to treatment contrary to Article 3 ECHR, if the deportation were enforced. Moreover, the ECtHR asks several other questions including (i) has the French Government has received assurances from the Sri Lankan authorities that there is no risk of the applicant being treated contrary to Article 3 ECHR, (ii) what reports did the authorities rely on, (iii) has the French Government issued and enforced any deportation orders to Sri Lanka since 2018 against Sri Lankan nationals because of their links to the Liberation Tigers of Tamil Eelam (LTTE), (iv) have the French authorities been in contact with the Sri Lankan authorities in relation to the applicant in the context of the application for a consular pass and, (v) whether steps were taken to accompany the applicant on his removal and to hand him over to the Sri Lankan authorities.
 
Based on an unofficial translation by the EWLU team.

A.T v France (application no. 53254/20) concerns proceedings for the expulsion of a Russian national, to Russia. The complaint is based in Article 3 ECHR taken alone and in conjunction with Article 8 ECHR.
 
In this context, the ECtHR first asks several questions regarding the removal inter alia: ((iii) what are the assurances that the French authorities obtained from the Russian authorities, specifically in relation to the risk of an Article 3 ECHR breach and the risk of being transferred to the North Caucasus and (iv) how the French authorities have established the absence of a risk. Furthermore, it asks whether France has already removed Russian nationals to Russia because of their link to a terrorist movement and whether the French authorities have contacted the Russian authorities on the question of a consular laissez-passer. Finally, the ECtHR asks whether domestic remedies in respect of the complaint under Article 3 in conjunction with Article 8 of the Convention and if so, does the applicant's house arrest constitute an interference with his right to respect for his private life under Article 8 § 1 of the Convention. If so, it further enquires if the interference is sufficiently justified.
 
Based on an unofficial translation by the EWLU team.

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European Union


C-8/20: AG Saugmandsgaard gives opinion on the compatibility of inadmissibility provisions with Article 33 of the Asylum Procedures Directive

On 18 March 2021, Advocate General Saugmandsgaard published an opinion in case C-8/20 concerning the interpretation of a ground for inadmissibility under Article 33 of the Asylum Procedures Directive (2013/32).

The request for preliminary ruling arose in proceedings between L.R., an Iranian national, and the Federal Republic of Germany concerning the legality of a decision to reject L.R.’s application for international protection based on the fact the L.R. had previously submitted an unsuccessful application for international protection in Norway and had been subsequently removed to Iran by the Norwegian authorities. The referring court seeks clarification on whether an application for international protection can be classified as a ‘subsequent application’ within the meaning of the Procedures Directive where the procedure which led to the rejection of an earlier application took place, not in another EU Member State, but in Norway.


AG Saugmandsgaard first considered the applicability of Article 33(2)(d) of the Asylum Procedures Directive in cases where the applicant has been removed to his or her country of origin before reapplying for international protection. The AG pointed to other provisions such as Article 2(q) of that directive as well as the Dublin III Regulation but noted that the responsibility of Norway for the applicant had ceased upon the completion of his removal to his country of origin. In that regard, the AG concluded that if Germany were obliged to examine the application, it would not prejudice the objectives the Dublin III Regulation. Consequently, the AG inferred that the application, in these circumstances, must be regarded as a ‘new application’.

The AG then considered the alternative; the applicability of Article 33(2)(d) where the applicant seeks international protection in a Member State other than that which adopted the previous negative final decision. The AG opined that in the context of the combined application of the Procedures Directive and the Dublin III Regulation, it is possible, by virtue of the principle of mutual trust for a Member State to adopt provisions in national law which can declare an application for international protection as a ’subsequent application’ where it  has not itself  adopted the final decision rejecting an earlier application by the same applicant but has become the Member State responsible for examining the later application. Nevertheless, the AG again noted that where an effective removal has taken place between the previous final rejection decision and the new application, the Member State will not enjoy this discretion.
 
Finally, the AG considered that where the examination of an application for international protection in a third state such as Norway, is subject to the guarantees required by EU law, the person concerned enjoys a level of protection that is at least as high as that of other Member States. As such, he considered that the fact that the final negative decision on an earlier application by the applicant was taken by Norway cannot, in itself, prevent a Member State, such as Germany in this case, from declaring a 'subsequent application' by the same applicant inadmissible under Article 33(2)(d) of Directive 2013/32.

In conclusion, the AG suggested that the Court interpret Article 33(2)(d) of Procedures Directive, read in conjunction with Article 2(q) of that directive, as meaning that an application for international protection cannot be declared inadmissible as a 'subsequent application' where the applicant has been removed to his country of origin before submitting it.

Based on an unofficial translation by the EWLU Team.

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Report of Frontex Management Working Group: Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea

On 1 March 2021, the final report of the Frontex Management Working Group entitled “Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea” was published. The Working Group was assigned to inquire about has happened regarding pushbacks in the Aegean Sea. Based on the examination of these incidents, the Working Group made a number of conclusions and recommendations. The report includes the Legal Advice of the European Commission on the nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations in the territorial sea of EU Member States. The legal advice is in keeping with the guidance provided by the letter of the Frontex Consultative Forum on Fundamental Rights.

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United Nations


UNHCR: Background Note on Gender Equality, Nationality Laws and Statelessness 2021

On 5 March 2021, UNHCR published its annual Background Note on Gender Equality, Nationality and Statelessness. The report includes the most up-to-date information available to UNHCR as of March 2021. It highlights the law reform in various countries to date, the progress of the #IBelong Campaign to End Statelessness and provides an update on the various countries where there an unequal ability of women to confer nationality on their children.

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National Developments


France: Council of State reiterates right to adequate reception conditions

On 12 March 2021, the Council of State annulled the decision of an interim relief judge to reject a request to order the French Office for Immigration and Integration (OFII) to provide material reception in the form of accommodation, allowance and temporary work permit.

The case concerns Ms C., a Burundian national who entered the French overseas department of Mayotte in 2010 with her son and submitted an application for asylum. The application was rejected at first instance in April 2020 and is currently being challenged before the National Court of Asylum. In the current proceedings, Ms. C is seeking to annul the decision to reject her request to order the OFII or the State to provide suitable accommodation for her and her son, to pay her allowance as an asylum applicant and to temporarily permit her to work. Ms. C. had not received assistance since 30 January 2020 and had been living with her son in a dwelling shared with twelve other people without access to running water or electricity.

The Council of State recalled Article 17 of the Reception Conditions Directive (2013/33) and its transposition into French law through the Code of entry and residence of foreigners and the right of asylum. However, with respect to asylum applicants registered in Mayotte, Article 761-1 of that Code provides that the usual reception conditions guaranteed may be adapted to the particular situation of Mayotte so that the provisions relating to the allowance of an asylum applicant in the mainland of France are not applicable and material assistance can be substituted.  It noted however that the Reception Conditions Directive did not merely create an option for a competent authority to provide material reception conditions but instead obliges them to do so until a final decision is taken on a request for asylum.
 
The Council of State found that the deprivation of material reception conditions that must be provided to an asylum applicant until a final decision constituted a serious and manifestly illegal infringement of a fundamental right. While the Council of State accepted that the accommodation facility in Mayotte would not be in a position to provide the applicant and her son reception, it ordered the State to grant her, without delay, material assistance sufficient to ensure she and her son could have a standard of living that guarantees their subsistence and protects their physical and mental health.

Based on an unofficial translation by the EWLU team.

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France: National Court of Asylum (CNDA): Litigation on the Right to Asylum Annual Report 2020

The French National Court of Asylum (CNDA) recently published its annual report on litigation on the right to asylum in 2020 consisting of the most up-to-date jurisprudence from the Council of State and the CNDA.

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ECRE


AIDA Report on France: 2020 Update

The updated AIDA country report on France documents the most recent developments in the French asylum system, i.e. legislative and practice-related changes in the asylum procedure, reception conditions, detention and content of international protection. It demonstrates that asylum applicants still face important difficulties in accessing both the asylum procedure and the reception system.
 
The report highlights key figures at first instance such as the total number of applications, decisions and recognition rates in the field of asylum. The AIDA report indicates that the significant lack of capacity of the reception system persisted, resulting in serious issues of homelessness and destitution. Illegal settlements and camps are regularly dismantled in big cities or in the North of France (e.g. Calais, Grande Synthe). The report highlights that in December 2020, a “national plan for the reception of asylum seekers and the integration of refugees for 2021-2023" was published.
 
As regards detention, concerns were expressed by the European Committee for the Prevention of Torture (CPT) and the Controller General of Places of Deprivation of Liberty about the conditions of immigration detention and the situation of pre-removal detention facilities, respectively.
 
Read the full report here. This is an edited version of an article originally appearing on the AIDA website, managed by ECRE.

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AIDA Report on Serbia: 2020 update

The updated AIDA Country Report on Serbia documents the main developments in the area of asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2020.
 
It demonstrates that many persons continue to be collectively expelled to and from Serbia without any prior assessment of their protection needs. Figures indicate that in 2020, Bosnia, Croatia, Hungary and Romania summarily returned more than 25,000 persons to Serbia. Moreover, collective expulsions from Serbia persisted, especially at the southern border with North Macedonia. A landmark ruling from the Serbian Constitution Court confirmed for the first time that illegal border practices have been carried out by the authorities.
 
The updated report highlights that COVID-19 introduced additional obstacles in accessing the asylum procedure and has further severely impacted the right to freedom of movement of refugees, asylum applicants and migrants who were prohibited from leaving asylum and reception centres for 3 months. Overcrowding and inadequate reception conditions also continue to be reported and concerns have been raised about the possibility of the conditions of two receptions centres amounting to inhumane and degrading treatment during the COVID-19 lockdown.
 
Read the full report here. This is an edited version of an article originally appearing on the AIDA website, managed by ECRE.

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AIDA Report on the Netherlands: 2020 Update

The updated AIDA Country Report on the Netherlands provides a detailed overview on legislative and practice-related developments in asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2020.
 
Due to the COVID-19 pandemic, the asylum procedure was suspended from 15 March 2020 up to 28 April 2020 and the significant delays in the asylum procedure persisted throughout 2020. The report highlights the number of applications passed to the newly established Task Force, assigned to clear the backlog of cases. It also gives an overview of the progress of the Task Force in 2020 and the additional measures implemented to reduce the backlog of pending cases, such as the optional written interview.
 
Due to the long waiting times and a delay in housing of status holders, applicants spend longer periods in the reception centres. The report notes that in 2020, the Netherlands also opened ‘austere’ reception centres for certain categories of asylum applicants.
 
It also indicates that family reunification has been severely impacted by the COVID-19 measures. Many family members who already had permission to reunite were not able to obtain the visa from the Dutch embassies, or could not travel to the Netherlands on the visa that had been issued.
 
Read the full report here. This is an edited version of an article originally appearing on the AIDA website, managed by ECRE.

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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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