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ELENA Weekly Legal Update (EWLU)

16 September 2016
 

Summary

European Court of Human Rights


Forthcoming Grand Chamber judgment in Khan v. Germany (no. 38030/12), [Article 8], 21 September 2016    

On 21 September 2016, the European Court of Human Rights will deliver its judgment in the case Khan v. Germany (no. 38030/12). The case concerns a challenge to a deportation to Pakistan on the basis of Article 8 of the European Convention of Human Rights.

On 14 September 2015, the Court referred this case to the Grand Chamber.

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National Developments


Netherlands: Designation of ‘safe country of origin’ clarified by Council of State

On 14 September 2016, the Council of stated reviewed the legality of the designation of Albania as a safe country of origin. In this case, the Council of State clarified under which conditions a country may be designated a safe country of origin. 

First, the country should have adopted domestic laws prohibiting human rights violations and should have protected its residents against these human rights violations in practice. Second, the Secretary of State should carefully examine the situation in the country concerned and sufficiently substantiate the decision to list a country as a safe country of origin. Third, the State Secretary must address the statements of the asylum seeker regarding the security situation in his or her country of origin as well as the circumstances which pertain to the individual in order to assess whether the applicant has a well-founded fear for persecution against which there is no protection.

In the present case, the Council of State found that the Secretary of State had carefully examined the situation in Albania and sufficiently substantiated the decision to list it as a safe country of origin.

See also the Advocate General’s opinion regarding the ‘Safe Country’ concept in asylum cases.

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Netherlands: District Court - Total time limit of Dublin Transfer maximum 18 months

On 23 August 2016, the District Court of The Hague ruled on the time limit of Dublin transfers per Article 29(2) of the Dublin III Regulation.

The asylum application lodged on behalf of a Syrian family was rejected in the Netherlands because Italy was deemed responsible for the examination of their asylum application. In accordance with Article 22(7) of the Dublin III Regulation, the Italian authorities had been responsible for the examination of the asylum application since 28 October 2014. Referring to Article 29(2) of the Dublin III Regulation, the applicants stated that the transfer time limit had therefore expired. 

According to the State Secretary, the transfer time limit had not yet expired as Article 29(2) of the Dublin III Regulation should be read in such a way that the time limit of 6 months may be extended for a period of 18 months. As a result, the total transfer time limit would be 24 months.

The District Court referred to the Dutch, English and French versions of the Dublin III Regulation text in order to provide an accurate interpretation of Article 29(2) of the Dublin III Regulation. Whereas the Dutch text allows for different interpretations, the English and French texts clearly state that the total time limit may not exceed 18 months. For example, the English text notes that “the time limit may be extended up to a maximum of eighteen months”.

As the time limit began to run from the date on which the Italian authorities were notified, this being 28 October 2014, the time limit of 18 months had expired on 28 April 2016. The Court therefore granted the appeal.

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

The Home Office has published three separated Country Information and Guidance reports regarding the security situation in Iraq. These documents provide information and guidance to decision-makers on handling asylum applications from Iraqi asylum seekers.

In the Country Information and Guidance Iraq: Return/Internal relocation, the Home Office determines that a person cannot be returned or relocated to the areas of Iraq which meet the threshold of Article 15(c) (Anbar, Ninewah, the parts of Kirkuk, in and around Hawija, and the north, west and east parts of the ‘Baghdad Belts’). In general, a person can relocate to Baghdad (except the north, west and east parts of the ‘Baghdad Belts’), the central governorates of Diyala, Kirkuk (except the areas in an around Hawija) and Salah al-Din, and the southern governorates (Babil, Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit). A person who does not originate from the Kurdistan Region of Iraq (KRI) will be returned to Baghdad in the first instance. There is no real risk of harm to ordinary civilians travelling from Baghdad to the southern governorates.

In the Country Information and Guidance Iraq: Security situation in Baghdad, the south and the Kurdistan Region of Iraq (KRI), the Home Office concludes that, in most of Baghdad governorate (including Baghdad City), the southern governorates and the Kurdistan Region of Iraq, indiscriminate violence is not at such a level that substantial grounds exist for believing that a person, solely by being present there for any length of time, faces a real risk of harm which would threaten their life or person. The security situation on the parts of the ‘Baghdad Belts’ (the areas surrounding Baghdad City) is however at a level of engaging Article 15 (c) of the Qualification Directive and entitling a person to a grant of Humanitarian Protection.

In the Country Information and Guidance Iraq: Security situation in the ‘contested’ areas, the Home Office considers Anbar, Diyala, Kirkuk (aka Tameen), Ninewah and Salah al-Din ‘contested’ governorates of Iraq. In the case AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) (30 September 2015), which considered evidence up to April 2015, the Upper Tribunal found that, in the ‘contested’ governorates, indiscriminate violence was at such a level that substantial grounds existed for believing that a person, solely by being present there for any length of time, faced a real risk of harm which threatened their life or person (thereby engaging Article 15(c) of the Qualification Directive and entitling a person to a grant of Humanitarian Protection). However, the situation has changed since then. Diyala, Kirkuk (with the exception of Hawija and the surrounding area) and Salah al-Din no longer meet the threshold of Article 15(c).

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UK: Home Office and Danish Immigration Service publish joint report on the situation of persons from Darfur, Southern Kordofan and Blue Nile in Khartoum

The UK Home Office and Danish Immigration Service published a joint report on the situation of persons from Darfur, Southern Kordogan and Blue Nile in Khartoum. The report focuses on the situation of persons from Darfur and the Two Areas (Southern Kordofan and the Blue Nile State) in Khartoum, including treatment of such persons upon arrival at Khartoum International Airport, treatment by the authorities in Khartoum, prevalence of societal discrimination, living conditions in Khartoum as well as access to Khartoum by road and air from Darfur and the Two Areas.

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NGOs


EDAL blog - Detention of asylum-seekers under the scope of Article 5(1)(f) of ECHR

Gruša Matevžič, Legal Officer at the Hungarian Helsinki Committee and ELENA Coordinator for Slovenia, has written a blog which assesses the legality of asylum-seekers detention under Article 5(1)(f) of the European Convention on Human Rights (ECHR) and most specifically through the lens of recent Strasbourg and Luxembourg jurisprudence.  

The contribution looks at the two limbs of Article 5(1)(f) ECHR which are used by States when justifying the detention of asylum seekers, namely detention for the purpose of securing deportation and detention in order to prevent unauthorised entry. In her examination of when detention can fall under either limb, the author notes that the recent Strasbourg Court in Nabil and Others v. Hungary has favoured an interpretation allowing for detention for the purpose of securing deportation where there is a pending asylum application, since a rejection of the decision could lead to the effectuation of the deportation order. Criticising this approach, the author notes the legal incoherencies with other ECtHR jurisprudence on detention of irregular migrants under return proceedings as well as the practical preparations for deportation. Compliance with the 1951 Convention in the context of asylum proceedings is raised as an additional point in this regard.  

The author concludes with some observations relating to the creation of new de facto places of detention and their compliance with Article 5(1)(f) ECHR.

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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 (ivankrimpen@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).
 
       

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