ELENA Weekly Legal Update (EWLU)

12 August 2016


The ELENA Weekly Legal Update will go on a summer break for three weeks and will resume on 9 September 2016. In the meantime, keep an eye on our Facebook and Twitter for regular updates.

National Developments NGOs

National Developments

Austria: Constitutional Court rules Dublin transfer of vulnerable asylum seekers to Italy without individual guarantees regarding their reception conditions unlawful

On 30 June 2016, the Austrian Constitutional Court ruled upon the requirement of individual guarantees regarding the Dublin transfers of vulnerable asylum seekers to Italy. The case relates to four Syrian nationals, a father and his three underage children. One of the children in suffering from post-traumatic stress disorder and dissociative disorder not otherwise specified (DDNOS).
The Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl) rejected their asylum application pursuant the Dublin III Regulation as the family had entered the European Union in Italy. The Federal Office alleges that individual guarantees were obtained from the Italian authorities regarding the reception of the applicants in accordance with Tarakhel v Switzerland (no. 29217/12). It referred to the Circular Letter: Guarantees for vulnerable cases; family groups with minors of 8 June 2015 and an letter entitled ‘Reception Guarantees according to Tarakhel v. Switzerland’ from the Italian Ministry of Interior. The Federal Administrative Court ruled in favour of the Federal Office.
The Constitutional Court, however, considers that the Circular only includes general information about the accommodation facilities for families with children transferred to Italy under the Dublin III Regulation. In the same manner, it establishes that the other letter also does not contain any personal information of the applicants, such as their names or filing numbers. Special consideration is given to the vulnerability of the child suffering from the post-traumatic stress disorder. The individual guarantees issued by the Italian authorities should therefore be of a higher standard. As a result, the judgment of the Federal Administrative Court should be set aside in respect of all the applicants.
The ELENA Weekly Legal Update would like to thank Gloria Kinsperger, ELENA Coordinator for Austria, for bringing this to our attention.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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Netherlands: District Court ruling on the internal protection alternative in Iraq

On 26 July 2016, the District Court of The Hague ruled on the internal protection alternative of two Sunni Iraqi nationals in Baghdad.
The applicants are from the city Falluyah in the district of Al Anbar, Iraq. This area has been deemed to fall within the meaning of Article 15(c) of the recast Qualification Directive. Nevertheless, the State Secretary of Security and Justice rejected their asylum application as the applicants could relocate internally to either Al Nasiriyah (South-Iraq) or Baghdad. Referring to the ACCORD report and UNHCR report, the applicants claimed that neither Al Nasiriyah nor Baghdad should be considered as an internal protection alternative.
According to the District Court of The Hague, the reports indicate that Sunni men in particular are in danger travelling around Shiite controlled areas in Iraq. As regards Al Nasiriyah, the District Court establishes that the State Secretary should have considered the changed security situation. While the applicants had visited Al Nasiriyah in the past, this did not, however, automatically imply that the applicants would be able to relocate there. The reports also reveal an increased security threat for displaced Sunni men in Baghdad.
In conclusion, the District Court grants the appeal because the State Secretary should have investigated to what extent the return of the applicants to proposed areas would result in additional safety risks. The State Secretary is obliged to reconsider the decision in light of this judgment.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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UK: High Court declares Dublin transfer to Hungary unlawful

On 5 August 2016, the High Court ruled in Ibrahimi & Abasi v SSHD [2016] EWHC 2048 (Admin) regarding the Dublin transfer of two Iranian nationals to Hungary.
The Secretary of State for the Home Department had rejected their asylum applications pursuant the Dublin III Regulation. According to the State Secretary, the applicants should be transferred to Hungary because “there was insufficient evidence of systemic or other failings in the Hungarian asylum system to rebut the strong presumption that Hungary would comply with its legal obligations.”
The applicants complained that their transfer to Hungary would result in a breach of the non-refoulement principle as safeguarded by Article 3 of the ECHR and Article 4 of the EU Charter of Fundamental Rights. In particular, they would be subjected to “chain refoulement” as the applicants would risk removal to Iran along a chain of unsafe States, including Serbia, Macedonia, Greece and Turkey.
The Court ruled in favour of the applicants. Referring to UNHCR and AIDA reports regarding systemic and/or operational risks in the asylum and judicial systems, it seriously doubted the applicants would be able to apply for asylum in Hungary. The High Court further noted that the Secretary of State should not resort to “broad and sweeping generalisations about presumptions of compliance” of an EU Member State. Therefore, “a full blown up-to-date analysis of risks and safety” is required, if the Secretary of State is to justify the Dublin transfers of the applicants.

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UK: Home Office Asylum Policy instruction on sexual orientation in asylum claims

The Home Office has published the Asylum Policy instruction: Sexual orientation in asylum claims. This document provides information about the consideration and management of asylum claims based on sexual orientation. It also provides guidance on how to take sexual orientation issues into account when looking at the experienced persecution and a failure of state protection.

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UK: Home Office Country Information and Guidance on the security and humanitarian situation in Afghanistan

The Home Office has published the Country Information and Guidance on the security and humanitarian situation in Afghanistan. This document provides information and guidance to decision-makers on handling asylum applications from Afghan asylum seekers. It addresses the actors in the conflict, the nature, levels and geographical distribution of violence and the humanitarian situation in Afghanistan.
In short, the Country Guidance establishes that the level of indiscriminate violence in Afghanistan taken as a whole is not at such a level as to mean that a civilian faces a real risk to his or her life or person solely by being present in the country. Nevertheless, a person’s individual circumstances might place them at risk. If certain personal factors would affect their individual risk, a lower level of indiscriminate violence is required for a person to be eligible for protection. In addition, the humanitarian situation in Afghanistan neither provides for a real risk of harm contrary to Article 3 of the ECHR.
The Country Guidance regards Kabul in general a safe and reasonable place for internal protection. Decision-makers are, however, required to take the current humanitarian and security situation into consideration. Single women and female heads of households should, therefore, not be expected to relocate to Kabul.

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ASGI: proposed temporary reception measures of unaccompanied children in Italy in violation of national, international and EU law

On 28 July 2016, Associazione per gli Studi Giuridici sull’Immigrazione (ASGI) send a letter to the Italian institutions concerning the adoption of the temporary reception measures for unaccompanied children.
The legislative proposal, currently being discussed in the Senate, provides for the establishment of temporary reception facilities for unaccompanied children in certain situations. This temporary measure will be deployed when the first-line reception facilities, the so-called SPRAR (Protection system for asylum seekers and refugees) centres, and the local municipalities are unable to provide adequate reception facilities. This is, for instance, the case when a substantial number of unaccompanied children arrives within a short period of time.
ASGI highlights that these temporary measures would be in violation of national, international and EU law and would be against the best interests of the child.
ASGI therefore calls for the annulment of the legislative proposal. Instead, ASGI proposes that unaccompanied children are accommodated by local councils by the way of the establishment of a national coordination system between local and regional councils.

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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 Isa van Krimpen (, or Julia Zelvenska (

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