Copy
ELENA Weekly Legal Update (EWLU)

24 February 2017
 

Summary


European Union National Developments ECRE

European Union


CJEU: Request for preliminary ruling from the Court of the Hague, Joined Cases C-47/17 and C-48/17

The Court of The Hague has referred a request for a preliminary ruling to the CJEU on the interpretation of Article 5(2) Implementing Regulation No. 1560/2003 in a case that concerns a request to Germany to “take back” the applicant by the Dutch authorities and the applicable time limits  for responding to the request for re-examination.
 
The Court of The Hague has referred six preliminary questions to the CJEU:

  1. Does the requested Member State, in view of the purpose, content and scope of the Dublin Regulation and the Procedures Directive, have to respond within two weeks on the request for re-examination as provided in Article 5(2) Implementing Regulation No. 1560/2003?
  2. If Question 1 is answered in the negative: does, in the light of the last sentence of Article 5(2) Implementing Regulation No. 1560/2003, the maximum period of one month as specified in Article 20(1) b) of Regulation 343/2003 (now Article 25(1) of the Dublin Regulation) apply?
  3. If Questions 1 and 2 are answered in the negative: does the requested Member State, as inferred by the the word "endeavour" in Article 5(2) of the Implementing Regulation No. 1560/2003, have a reasonable time to respond to the request for re-examination?
  4. If the requested Member State indeed has to respond to the request for re-examination within a reasonable time, on the basis of Article 5(2) Implementing Regulation No. 1560/2003, is it still a reasonable time, as in this case, if more than six months have passed? If this question is answered in the negative, what can be considered as a reasonable time?
  5. What should be the consequence if the requested Member State does not respond to the request for re-examination within two weeks, a month or a reasonable time? Is the requesting Member State then responsible for the substantive assessment of the asylum application, or the requested Member State?
  6. If (it is to be assumed that) the requested Member State is responsible for the substantive examination of the asylum application as it fails to respond to the request for re-examination within the time limits in accordance with Article 5(2) Implementing Regulation No. 1560/2003, what are the time limits for the requesting Member State to notify the applicant of this?

 Based on an unofficial translation by the ELENA Weekly Legal Update.

Back to top

CJEU: Request for preliminary ruling from the Court of Minden, Case C-36/17

The following questions are submitted by the Court of Minden to the Court of Justice of the European Union for a preliminary ruling in the accelerated procedure under Article 105 of the Rules of Procedure of the Court of Justice:

  1. Is Article 20 to 33 of Regulation 604/2013 applicable to asylum seekers who have already been granted subsidiary protection in a Member State?
  2. If Question 1 is answered in the affirmative: Can an asylum seeker claim the transfer of responsibility to the requesting Member State because of the expiry of the deadline for the resume request (Article 23 (3) of Regulation No 604/2013)?
  3. If Question 2 is answered in the affirmative: Can an asylum seeker claim the transfer of jurisdiction even if the requested Member State is still willing to accept her or him?
  4. If Question 3 is answered in the negative: Can it be concluded from the explicit consent or fictitious consent (Article 25 (2) of Regulation No 604/2013) of the requested Member State that the requested Member State is still prepared to accept the asylum seeker?
  5. Can the two-month period laid down in the second subparagraph of Article 23 (2) 1 L 604/2013 end after the expiry of the three-month period as stipulated in the second subparagraph of Article 23 (2) 2 L 604/2013 if the requesting Member State allows more than one month to pass after the start of the three-month period before submitting a request to the Eurodac database?
  6. 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 para. 2 of Regulation 604/2013? In particular:
  1. Is the certificate of notification as an asylum seeker a form or a protocol within the meaning of Article 20 (2) of Regulation (EC) No 604/2013?
  2. Is the responsible authority within the meaning of Article 20 (2) Regulation 604/2013 the authority that is responsible for receiving the form or creating the record or is it the authority responsible for the decision on the application for asylum?
  3. Has a form or administrative record been sent to the responsible authority if the essential content of the form or protocol has been communicated to the authority, or must the original or a copy of the record be transmitted?
  1. May delays between the initial request for asylum or the first issue of a certificate stating that the person is an asylum seeker and the filing of an application for readmission lead to a transfer of responsibility to the requesting Member State in accordance with Article 23 (3) Regulation 604/2013, or to oblige the requesting Member State to make use of the sovereignty clause under the first subparagraph of Article 17 (1) 1 Regulation 604/2013?
  2. May delays between the initial request for asylum or the first issue of a certificate stating that the person is an asylum seeker and the filing of an application for readmission, lead to a transfer of responsibility to the requesting Member State in accordance with Article 23 (3) Regulation 604/2013, or to oblige the requesting Member State to make use of the sovereignty clause under the first subparagraph of Article 17 (1) 1 Regulation 604/2013?
  3. If Question 7 is answered in the affirmative with respect to one of the two alternatives: What is the period of after which there is an unreasonable delay in the application for re-entry?
  4. If, in an application for admission, the requesting Member State only states the date of the entry into that Member 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 under the second subparagraph of Article 23 (2) 1 and 2 of Regulation 604/2013 or is such an application "ineffective"?

Except for the first question, these questions are identical to the reference lodged to the CJEU by the Court of Minden.

EDAL and the ELENA Network would like to thank Katharina Bamberg (Research and Communications Assistant at the Odysseus Network) for translating these questions.

Back to top

National Developments


The Netherlands: Cohabitation is not a requirement for family reunification of refugees

On 20 February 2017 the Council of State of the Netherlands has judged that cohabitation is not a requirement to apply Chapter V of the Family Reunification Directive (family reunification of refugees).
 
The applicant and his wife, both of Palestinian origin, met in Lebanon in 2009 and were married through a long distance ceremony in 2013. The applicant, coming from Lebanon, was residing in Belgium at the time of the marriage, while his wife was residing in Syria. In 2014, the wife received refugee status in the Netherlands. The couple saw each other again in Belgium in 2015. The applicant requested to join his wife in the Netherlands, but according to the Secretary of State Article 9(2) of the Family Reunification Directive could be interpreted as meaning that the spouse of a recognised refugee can only get derivative refugee status if they actually lived together before the flight of the sponsor.

On appeal, the Council of State holds that the Family Reunification Directive does not allow a Member State to require that the applicant and the sponsor actually lived together. Article 9(2) requires that family members must have belonged to the family of the refugee at the time of entry of the refugee. In order to determine the meaning and scope of this provision of EU law, the wording of the provision as well as the objectives of the system of which it is part should be taken into account. According to the Council of State it cannot be deduced from the definition of “family reunification” in Article 2 of the Family Reunification Directive that the couple must actually have lived together in order to qualify for family reunification. Article 11(2) in conjunction with Article 9(2) of the Family Reunification Directive requires that a valid marriage prior to entry into the Netherlands exists in accordance with Dutch international private law. According to settled case-law of the CJEU (see for example case C-578/08 Chakroun of 4 March 2010, para. 43), Member States cannot use their margin of appreciation, in this case the discretion to refuse applying the more favourable provisions of Chapter V in the case of family reunion where family ties existed before the sponsor entered the Netherlands, in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof. In this regard, the Department also refers to paragraph 8 of the preamble of the Family Reunification Directive which states that the situation of refugees requires special attention and therefore more favourable conditions for the exercise of their right to family reunification have been created. This means that setting stricter conditions for family reunification in such a case is not allowed.

As the Secretary of State has expressed during the hearing that it is not in dispute that the applicant and the sponsor were married before they entered the Netherlands, and thus there is a legal family relationship, the Council of State decides that the conditions under Chapter V of the Family reunification Directive have been fulfilled. The appeal by the applicant is allowed.

Based on an unofficial translation by the ELENA Weekly Legal Update.

Back to top

France: Series of decisions on asylum claims related to sexual orientation

On 8 February 2017 the French Council of State published an analysis regarding asylum cases related to sexual orientation. The analysis issued by the Council of State focuses on matters of particular jurisprudential relevance and elucidate on the legal reasoning behind a series of cases raising similar legal questions. In line with the CJEU’s ruling in X, Y and Z and A, B and C, the Council of State reaffirms its understanding that: (a) homosexuality can constitute a particular social group depending on national circumstances, notably by the regard of institutions and the society at large; (b) persecution is not limited to the public manifestation of one’s sexual orientation; (c) it is forbidden to expect an applicant to be discrete in the expression of his/her sexual orientation; (d) persecution can take place without criminal provisions against homosexuality, such as when common provisions are applied abusively against homosexuals or when authorities engage, encourage or tolerate persecutory acts; (d) applicants cannot be expected to prove their sexuality in advance and the assessment of credibility must be based on the documentation and personal story of the applicant.

On that same day, the Council of State ruled on four asylum cases related to sexual orientation. Besides recalling the line of interpretation above, the cases also provided further clarification on the assessment of asylum claims related to sexual orientation. In case no. 379378, the Council ruled that not having revealed his sexual orientation to others beyond his family circle does not imply that the applicant would not suffer persecution for his sexual orientation, since homosexuals are exposed to discrimination and violence in the West Bank and cannot count on the protection of public authorities. In cases no. 397745, no. 395821 and no. 396695, the Council rejected the applicants’ requests for annulment and concurred with the national court that neither the declarations nor the documents submitted by the applicants substantiated their fear of being persecuted due to their sexual orientation in Guinea, Bangladesh and Ivory Coast, respectively.

Based on an unofficial translation by the ELENA Weekly Legal Update.

Back to top

Belgium: Obligation to give proper weight to the impacts of psychological harm; victims of forced marriage in Guinea constitute a particular social group

In a judgment of 10 February 2017, the Belgian Council of State reversed the decision of the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) and granted refugee status to a Guinean woman who feared persecution from her family after having escaped a second forced marriage. The CGRS had denied the applicant’s request for asylum three times, despite having received substantial material on the practice of forced marriages in Guinea and medical certificates indicating the existence of both physical and psychological harm. The CGRS had substantiated its decision on alleged inconsistencies on the applicant’s statements and on the fact that the applicant had not disclosed all details of past incidents of torture at the first opportunity.

The Council of the State ruled that the CGRS had not given proper weight to the impact of the applicant’s psychological harm on her capacity to invoke her past with the utmost precision, in spite of being aware that the applicant suffered from post-traumatic stress as attested by a psychological report presented to the CGRS. The Council referred to R.C. v. Sweden, where the ECtHR ruled that medical certificates indicating previous injury caused by torture or treatment contrary to Article 3 ECHR constitute a strong presumption of previous injury and thus it is for the national authorities to dispel any doubts related to the cause of such injury. The Council also concluded that the assessment of credibility cannot overshadow the existence of fear of being persecuted itself. Finally, it granted the applicant refugee status based on her fear of persecution for being part of a particular social group, that of Guinean women victims of forced marriage.

Based on an unofficial translation by the ELENA Weekly Legal Update.

Back to top

 

ECRE


AIDA: Updated AIDA Country Reports on Austria and Belgium

The updated AIDA Country Reports on Austria and Belgium have been published on the AIDA website. The reports provide an updated and thorough overview of developments in legislation, policy and practice in relation to the asylum procedure, reception conditions, detention of asylum seekers and integration of beneficiaries of international protection.

Back to top

Facebook
Twitter
Website
LinkedIn
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 (jzelvenska@ecre.org).
 


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






This email was sent to <<Email Address>>
why did I get this?    unsubscribe from this list    update subscription preferences
European Council on Refugees and Exiles · 146 rue Royale · Brussels 1000 · Belgium