ELENA Weekly Legal Update (EWLU)

20 January 2017


European Court of Human Rights European Union National Developments NGOs ECRE

European Court of Human Rights

Intervention Submission in E.S. v. Spain, (no. 13273/16), by the AIRE Centre, ECRE, HDT, ICJ and ILGA

An intervention has been submitted to the ECtHR in E.S. v. Spain by the AIRE Centre, ECRE, Human Dignity Trust, the International Commission for Jurists and the International Lesbian and Gay Association. The case relates to the potential for refoulement with respect to a Senegalese gay man. In Senegal, homosexuality is criminalised and there are widespread reports of ill-treatment.
The Intervention focuses on three areas:

  1. Enforced concealment of one’s same-sex sexual orientation constitutes persecution under refugee law and is incompatible with the Convention, in particular, Article 3;
  2. The criminalization of consensual same-sex  sexual  conduct  gives  rise  to  a  real  risk  of  Article  3  prohibited  treatment,  thus  triggering non-refoulement obligations under that provision of the Convention; and
  3. The risk of persecution based on sexual orientation in Senegal.

Please click here for a longer summary and a copy of the intervention.

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Communicated case: H.A. and Others v. Greece (no. 19951/16), communicated on 25 November 2016

On 6 November 2016, the European Court of Human Rights communicated the case H.A. v. Greece (no. 19951/16), which relates to the detention of nine unaccompanied minors (aged between 15 and 18), five Syrian, three Iraqi and one Moroccan in Greek police stations.
The applicants submitted an application to the ECtHR complaining that their rights under Articles 3, 5(1)d), 5(2), 5(4) and 13 ECHR had been violated.

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European Union

CJEU: Request for a preliminary ruling from the German Administrative Court of Minden relating to the Dublin Regulation

The German Administrative Court of Minden has referred a request for a preliminary ruling to the CJEU on the interpretation of Article 21(1) of Dublin III Regulation in a case that concerns the transfer to Italy under the Dublin III Regulation.
The following questions are submitted to the CJEU for a preliminary ruling in the accelerated procedure under Article 105 of the Court’s procedural rules:

  1. Is an asylum seeker permitted to claim for the transfer of responsibility to the requesting Member State by reason of the time limit for the status of the application for admission having expired (Article 21(1)(3) of Regulation 604/2013 (“the Regulation”))?
  2. If question one is answered in the affirmative: Is an asylum seeker equally permitted to claim for the transfer of responsibility, if the requested Member State continues to be prepared to receive him?
  3. If question two is answered in the negative: Is it possible to conclude from the express or rather fictitious approval (Article 22(7) of the Regulation) of the requested Member State that they may continue to be prepared to receive the asylum seeker?
  4. Is it possible for the two-month period under Article 21(1)(2) of the Regulation to end after the three-month period under Article 21(1)(1) of the Regulation, if the requesting Member State lets more than a month pass after the beginning of the three month period before making enquiries of the EURODAC database?
  5. Is an application for international protection deemed to have been validly made by the issuing of a certificate stating the person is an asylum seeker or only by the recording of a formal application for asylum within the meaning of Article 20(2) of the Regulation? In particular:
  1. Is a certificate stating the person is an asylum seeker a form or a record within the meaning of Article 20(2)?
  2. Is the responsible authority within the meaning of Article 20(2), the authority that is responsible for receiving the form or creating the record or is it the authority that is responsible for taking a decision in respect of the application for asylum?
  3. Has such a record been received by the responsible authority where the substantial content of the form or the record has been communicated or is it required that the original record or a copy of the record is transmitted?
  1. Is it possible for delays between the first asylum request or rather the first issuing of a certificate stating the person is an asylum seeker and the status of an application for admission to lead to a transfer of responsibility to the requesting Member State as per Article 21(1)(3) of the Regulation or to oblige the requesting Member State to make use of the sovereignty clause as per Article 17(1)(1) of the Regulation?
  2. If question 6 is answered in the affirmative with respect to one of the alternatives: After which period of time is there an unreasonable delay in the status of an application for admission?
  3. If, in an application for admission, the requesting Member State only states the date of the entry into that state as well as the date of the formal application for asylum being made but the requesting Member State does not state the date of the first request for asylum or rather the date of the first issuing of a certificate stating the person is an asylum seeker: does this preserve the period as per Article 21(1)(1) of the Regulation or is such an application “ineffective”?

The ELENA Weekly Legal Update would like to thank Christian Freuling for his translation.

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National Developments

The Netherlands: Dublin transfer to Germany despite absence of a formal application for asylum in Germany

This case concerns a Syrian national who applied for international protection in the Netherlands. The Secretary of State held that Germany was responsible for processing the application under Article 18(1)(b) of the Dublin III Regulation (Regulation 604/2013). Germany accepted its responsibility, stating that “despite the absence of a formal application for asylum, Germany had a German ‘BÜMA’ or a written instruction, which proves that the applicant was registered as an asylum seeker in Germany".
On 18 January 2017, the Council of State on appeal decided that Germany is indeed responsible for the asylum application, based on Article 18(1)(b) in conjunction with Article 3(2) of the Dublin III Regulation. The Council of State found that a Member State under the Dublin Regulation may be considered responsible for taking back asylum seekers and examining their applications as soon as the applicants have applied for international protection in that Member State as defined in Article 2(b) of the Dublin III Regulation. It is not necessary that an application for international protection has been formally submitted according to the national law of that State. The fact that the applicant in the present case had not formalised his expressed application for international protection in Germany does not mean that Germany is not responsible for the examination of his asylum application.
According to the Council of State it is indeed not compatible with the objective of the Dublin Regulation that the Member State in which an applicant expresses his first request for international protection – and on the basis of which he has acquired various rights – can never be held responsible on the basis of the applicant transiting to another Member State before actually submitting and signing and thus formalising his request in the first Member State. This equates to forum shopping, according to the Council of State.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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Comments from the ARC and DCR on EASO’s COI report on Turkey

On 10 January 2017, the Asylum Research Consultancy (ARC) and the Dutch Council for Refugees (DCR) published a joint memorandum with comments on the country of origin information report of EASO on Turkey from last November. The memorandum contains general observations and recommendations on the methodology of the report and the country information on Turkey. The note also focuses on Chapter 6 of the EASO report on the attempted military coup.

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EDAL blog: Refugees with disabilities: are new qualification norms required to address today’s protection needs?

Carmine Conte, PhD Candidate in EU law at the Middlesex University of London and human rights advisor at the European Disability Forum, has written a new EDAL blog on the rights of refugees with disabilities.

With the blog the author aims to show that the Qualification Directive missed the opportunity to include disability as a specific ground to afford refugee status. The author has examined the extent to which the provisions of the Convention on the Rights of Persons with Disabilities (CRPD) can add value to the existing states' obligations to protect refugees. In the blog, the EU is called upon to take into account the specific situation of persons with disabilities and provide a legal framework that is in line with the international obligations of the CRPD. According to the CRPD, States Parties have the obligation to adopt all necessary measures to ensure the protection and safety of persons with disabilities in situations of armed conflict and humanitarian emergencies. To not include disability into the qualification articles, the author argues, is to further ignore the development and incorporation of tailored provisions for those with disabilities in other Articles of the Qualification Directive as well as the Procedures Directive and the Reception Conditions Directive.

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AIDA: Asylum Statistics 2016: Sharper inequalities and persisting asylum lottery

The Asylum Information Database (AIDA) has published an article that provides an overview of available asylum statistics for 2016 in key European countries. The statistics reveal sharper discrepancies in the distribution of refugees across Europe, as well as persisting disparities in recognition rates for international protection. In general, it finds that Germany by far received the most asylum seekers, and recognition rates vary significantly from one EU Member State to another.

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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 Julia Zelvenska (

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

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