ELENA Weekly Legal Update (EWLU)

20 November 2020


European Court of Human Rights

B and C v Switzerland: ECtHR finds a Convention violation in case of removal of a homosexual applicant to the Gambia

On 17 November 2020, the European Court of Human Rights ruled that Switzerland had violated Article 3 ECHR in the case of a Gambian homosexual person who faced removal to the Gambia (application nos. 43987/16 and 889/19).
Mr. B, a Gambian and Malian national, unsuccessfully applied for asylum in Switzerland. His applications and subsequent appeals were rejected on credibility grounds, and the situation of homosexuals in the Gambia was in itself not considered sufficient to qualify for refugee status. The Federal Administrative Court even underlined that there was no need to assess the situation of homosexuals in the Gambia, notwithstanding that homosexuality carries a 14-year prison sentence there. Finally, an appeal court found that B was not entitled to refugee status based on the registered partnership that he had with Mr. C, a Swiss national.
The second applicant, C, died in the course of the proceedings and the Court decided to strike his application out of the list and not to consider his complaints regarding Article 8 ECHR.  
Mr. B complained that his return to the Gambia would expose him to the risk of ill-treatment under Article 3 ECHR. More specifically, he feared the active persecution of homosexuality in the country, notwithstanding the improved situation for LGBTI-people since the election of a  new, more LGBTI-friendly president in 2016. 
In its assessment, the ECtHR referred, inter alia, to the findings of the CJEU in X, Y and Z v. Minister van Immigratie en Asiel and the ECtHR’s previous case law, thereby stating that the mere existence of laws criminalising homosexual acts in the country of destination, does not render an individual’s removal to that country contrary to Article 3 ECHR. However, it also considered that a person’s sexual orientation forms a fundamental part of his or her identity and that no one should be obliged to conceal his or her sexual orientation in order to avoid persecution. Thereby, the Court underlined that B’s sexual orientation could be discovered if he were removed to the Gambia and that the Swiss authorities had not assessed whether the Gambian authorities would be able and willing to protect LGBTI-people against ill-treatment by non-State actors. For these reasons, the Court concluded that the Swiss courts had failed to sufficiently assess the risks of and State protection against ill-treatment from non-State actors, leading to a violation of Article 3.
ECRE, ILGA-Europe and ICJ intervened in this case.

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Communicated case against the UK

H.A. v United Kingdom (application no. 30919/20) concerns Mr. H.A, a stateless person of Palestinian origin living in the UK, who was born in the Ein El-Hilweh refugee camp in Lebanon. Both his application for international protection and subsequent appeals were unsuccessful. 
The applicant complains that he faces a real risk of severe mistreatment by paramilitary groups if he is returned to the Ein El-Hilweh camp in violation of Article 3 ECHR. He complains in particular, that the domestic courts only took pre-flight events into account, while failing to address the merits of his claim of future risk.
The ECtHR first asks the Parties whether there has been a violation of Article 3, taken alone or in conjunction with Article 13, on account of the failure of the domestic courts to examine whether the applicant’s risk of forcible recruitment by extremist groups in the Ein El-Hilweh camp gave rise to a real risk of being subjected to treatment contrary to Article 3 upon return to Lebanon. Secondly, the Court asks whether the applicant would face a real risk of being subjected to treatment contrary to Article 3 if returned to Lebanon.

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Communicated case against Russia

D.S. v Russia (application no. 30943/20) concerns the pending extradition of the applicant, a Turkmen national, from Russia to Turkmenistan. The applicant, who fled Turkmenistan and obtained refugee status in the Republic of Armenia in 2019, was arrested in Crimea on 30 June 2020 by police officers who, after having verified his identity, found out that he was wanted by the authorities of Turkmenistan. The applicant was placed in extradition detention in Crimea. He was released following the expiration of the statutory period of detention, and no extradition request had been received from the Turkmenistan authorities. The applicant alleges that if  extradited to Turkmenistan, he would face a real risk of ill-treatment in breach of Article 3 ECHR. He also complains that there are no effective remedies within the meaning of Article 13 ECHR to have his allegations of ill-treatment examined by Russian authorities. 

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European Union

CJEU: Judgment in C-238/19, E.Z, regarding the interpretation of Article 9 Qualification Directive 

On 19 November 2020, the CJEU delivered its preliminary ruling in the case of E.Z v Federal Republic of Germany (C-238/19), in the context of an appeal before the Administrative Court of Hannover regarding the decision to grant subsidiary protection, but refusal to grant refugee status to a Syrian conscript who fled to Germany in order to avoid military service. 
In this context, the Administrative Court stayed the proceedings and asked the CJEU to interpret Article 9(2)(e) & (3) of the Qualification Directive (Directive 2011/95/EU). 
The CJEU found that Article 9(2)(e) must be interpreted as not precluding a refusal of service being established in a situation in which the law of the State of origin does not provide for the possibility of refusing to perform military service, and in which the person concerned has not formalised his or her refusal and has fled his or her country of origin without presenting himself or herself first to the military authorities.
Furthermore, the CJEU indicated that, in the context of a civil war that is characterised by repeated and systematic commission of war crimes or crimes against humanity by the army using conscripts, it is irrelevant that the person concerned does not know what his or her future field of military operation will be. The Court noted that, with regard to the well-documented fact that the Syrian army  repeatedly and systematically committed war crimes, it is highly plausible that a conscript would be led, regardless of his or her field of operation, to participate directly or indirectly in the commission of such crimes. 
Nonetheless, the CJEU noted that there must be a connection between, on the one hand, the prosecution and punishment for refusal to perform military service and, on the other hand, at least one of the five reasons for persecution that may give rise to the recognition as a refugee. The Court emphasised that refusal to perform military service will often be a reflection of a person’s expression of political opinions, religious belief or membership of a particular social group, thus giving rise to a strong presumption of the connection. The CJEU also stated that it cannot be found that it is for the applicant for international protection to prove this connection.
In conclusion, the CJEU stated that Article 9(2)(e) in conjunction with Article 9(3) of the Qualification Directive must be interpreted as meaning that the existence of a connection between the 5 grounds for refugee recognition and the prosecution and punishment for refusal to perform the military service referred to in Article 9(2)(e) cannot be regarded as established solely because that prosecution and punishment are connected to that refusal. However, it emphasised there is a strong presumption that refusal to perform military service under the conditions set out in Article 9(2)(e) relates to one of these five reasons. 

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Council of Europe

CPT: Greece should change approach on migration detention and act to prevent pushbacks 

On 19 November 2020, the anti-torture Committee (CPT) published a report on its visit to Greece from 13 to 17 March 2020.  

While the CPT acknowledges the challenges that Greece faces in light of the large numbers of migrants entering Europe through Greece, it underlined that the country has to fulfil its human rights obligations and its duty of care towards all migrants.
In that regard, the CPT found that the detention conditions for migrants in the Evros region and on the island of Samos could amount to inhuman and degrading treatment. More generally, the CPT highlighted that Greece’s migration detention policy suffers from structural deficiencies, which leads to migrants being held in deplorable conditions.  
The CPT also found that vulnerable groups, such as families with children and unaccompanied and separated children, were being held in appalling conditions with no appropriate support and called for the release of, inter alia, unaccompanied children. 
In addition, the CPT noted that it had received new allegations of pushbacks across the Evros River border to Turkey and called upon the Greek authorities to act to prevent such pushbacks. It also raised concerns over acts by the Greek Coast Guard, who seems to prevent boats with migrants from reaching the Greek islands, and thereby also requested more information on the role of FRONTEX in such operations. Finally, it highlighted the ill-treatment of detained migrants by the police.

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United Nations

CRC: Violation of Article 3 and 12 CRC by failing to exercise children’s right to be heard pending a Dublin transfer

On 30 October 2020, the Committee on the Rights of the Child adopted its views, under Article 10(5) of the Optional Protocol to the Convention on the Rights of the Child (CRC), concerning the communication (CRC/C/85/D/56/2018) submitted by the author on behalf of her children, E.A and U.A.

The author, her husband and their children, E.A and U.A, fled from Azerbaijan to Switzerland. The first time, the family had to agree to return to Azerbaijan. However, after her husband’s arrest upon return, the author arranged to flee again to Switzerland via Italy, with E.A and U.A. While the Swiss authorities subsequently instituted a take back request to Italy under the Dublin III Regulation (Regulation 604/2013), the author unsuccessfully requested, under article 17 of Dublin III, that the Swiss authorities examine their asylum application, given that the transfer would be detrimental to the rights and best interests of the children in a vulnerable family. The author suffered panic and anxiety attacks during the removal operation and as a result the police abandoned the family at Zurich airport with no money and told them to make their own way back to their accommodation in Ticino. 
The author complained that the Swiss authorities violated their obligation to respect the rights set out in the CRC under, inter alia, articles 3 and 12.  
The Committee took note of the author’s allegation that the Swiss authorities violated article 12, guaranteeing the right of the child to be heard in any judicial or administrative proceedings affecting the child. It pointed out that this article imposes no age limit on the right of the child to express her or his views and stated that, in general, it discourages States parties from introducing age limits either in law or in practice that would restrict the child’s right to be heard in all matters affecting her or him. The Committee highlighted that determining the best interests of the children requires that their situation be assessed separately, notwithstanding the reasons for which their parents made their asylum application.  It adopted the view that the absence of a direct hearing of the children constituted a violation of article 12 CRC.
Moreover, the Committee noted the author’s argument that the Swiss authorities did not take into consideration the trauma experienced by the children, including twice fleeing their country of origin, once returning to their country of origin and attempting a second time at making them return under particularly traumatic conditions. It considered that the national  authorities, having failed to hear E.A and U.A, did not show due diligence in assessing the children’s best interests and thus violated article 3 CRC. 

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National Developments

France: Non-FGM Somalian children and adolescents form a social group under the Geneva Convention

On 4 November 2020, the French National Court of Asylum published its decision, in which it concluded that Somalian children and adolescent girls who are not subjected to FGM, constitute a social group under the Geneva Convention
‘A’ is a two-year-old Somalian girl who was represented by her parents during her application for asylum. Her parents come from different clans and allegedly escaped Somalia because A’s mother’s family did not approve of the marriage with A’s father. Furthermore, A’s mother was a victim of FGM, at the hands of her family.
The National Court held that A’s right to be heard was not complied with by the French authorities, given that only A’s father was briefly interviewed about the impact that a return could have on A. Furthermore, the Court underlined that FGM is almost universally practiced in Somalia, with 98% of girls and women between the age of 15 and 49 being subject to some form of FGM. Therefore, the Court concluded that FGM represented an objective social norm and that girls not subjected to FGM, constituted a social group. The Court attached particular importance to the fact that the mother had undergone a severe case of FGM and concluded that the adherence of A’s families to the practice exposed A to a real risk of being subjected to the same treatment. Finally, the Court assessed that, in case of a return, A’s parents would be entirely reliant on their families and would therefore not be able to oppose FGM practices on their daughter.
The Court concluded that A rightfully feared, in the sense of Article 1A (2) of the Convention, to be prosecuted in Somalia for pertaining to a social group, without being able to avail herself of the effective protection from the authorities. Therefore, the Court recognized her as a refugee.  

Based on an unofficial translation by the EWLU Team.

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Malta: Court orders release of a migrant who was detained on the basis of medical reasons

On 29 October 2020, the Maltese Court of Magistrates decided that the detention of an Ivorian national, on the basis of medical reasons, had no basis in law and therefore ordered his release.
The Court underlined that it had encountered several cases in which people were detained without a legal basis and expressed its concern regarding the impact of such detention on the rule of law.  
With special thanks to Dr. Neil Falzon, coordinator for ELENA in Malta for notification of this case. 

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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 (

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