ELENA Weekly Legal Update - 18 July 2014
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18 July 2014


European Court of Human Rights

European Court of Human Rights

Upcoming judgments of interest

Tuesday 22 July 2014

A.D. and Others v. Turkey (no. 22681/09) [Articles 2, 3, 5 and 13] (Proposed deportation to China of five Chinese nationals of Uighur origin – risk of persecution due to political and religious beliefs)

Thursday 24 July 2014

Kaplan and Others v. Norway (no. 32504/11) [Article 8] (Deportation of Turkish man to Turkey – separation from wife and children)

A.A. and Others v. Sweden (no. 34098/11) [Article 3] (Deportation to Somaliland – risk of persecution by Al-Shabaab – dispute as to genuine region of origin)

Read the forthcoming judgments press release of the European Court of Human Rights.

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European Union – Court of Justice

Judgment in Case C-481/13 Qurbani

(Reference for a preliminary ruling — Geneva Convention of 28 July 1951 relating to the Status of Refugees — Article 31 — Third country national who has entered the territory of a Member State after passing through another Member State — Use of the services of human traffickers — Unauthorised entry and stay — Presentation of a forged passport — Criminal penalties — Lack of jurisdiction of the Court)

Facts of the case

Mr Qurbani fled his native Afghanistan using the services of a human trafficker, eventually reaching Germany by plane from Greece, having passed through Iran and Turkey. When he was arrested on arrival for unauthorised entry and use of a forged Pakistani passport, he immediately claimed asylum. Pending the asylum procedure, which is ongoing, he was prosecuted for unauthorised entry and forgery of documents, but subsequently acquitted by the Local Court in Würzburg on the basis of Article 31 of the 1951 Geneva Convention. Article 31 exempts asylum seekers ‘coming directly from a territory where their life or freedom was threatened’ from being penalised for irregular entry ‘provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

The prosecuting authorities appealed to the Higher Regional Court in Bamberg on the ground that Article 31 does not apply to Mr Qurbani, for two reasons: first, having transited via Greece, he did not ‘come directly’ to Germany from Afghanistan; second, Mr Qurbani was being prosecuted for offences ‘connected with’ unauthorised entry – trafficking and forgery – as opposed to the unauthorised entry itself. The Bamberg Court referred questions to the CJEU concerning the correct interpretation of Article 31.

Questions referred for a preliminary ruling

1. Does the personal ground for exemption from penalties in Article 31 of the [Geneva Convention] also include, beyond its wording, forgery of documents, which took place on presentation of a forged passport to a police officer on the occasion of entry by air into [Germany], when the forged passport is not in fact necessary to apply for asylum in that State?

2. Does the use of human traffickers preclude reliance on Article 31 of the [Geneva Convention]?

3. Is the factual requirement in Article 31 of the [Geneva Convention], of coming “directly” from a territory where the life or freedom of the person concerned was threatened, to be interpreted as meaning that that condition is also satisfied if the person concerned first entered another Member State (here: [the Hellenic Republic]) from where he continued to another Member State (here: the Federal Republic of Germany) in which he seeks asylum?

Consideration of the questions referred

The CJEU ruled that it had no jurisdiction to answer the questions referred. ‘It is settled case-law that the power, resulting from Article 267 TFEU, to provide interpretations by way of preliminary rulings extends only to rules which are part of EU law’ [21]. Although Article 31 is referred to in Article 14(6) of the Qualification Directive, and the Geneva Convention is referenced more generally in Article 18 of the Charter of Fundamental Rights of the EU and Article 78 of the Treaty on the Functioning of the EU, the CJEU concluded that Member States ‘have retained certain powers ... relating to the subject-matter of Article 31’ [24]. ‘Article 31 ... has not been taken over in a piece of EU legislation’ [26].

Read the judgment of the CJEU.

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Judgments in Joined Cases C-473/13 & C-514/13 Bero & Bouzalmate and Case C-474/13 Pham 

(Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Article 16(1) — Detention for the purpose of removal — Detention in prison accommodation — Not possible to provide accommodation for third-country nationals in a specialised detention facility — No such facility in the Land where the third-country national is detained)

Facts of the cases

All three applicants are third-country nationals who were detained pending removal in ordinary prisons in Germany due to the lack, in their Land (federated State), of specialised detention facilities for such returnees. Ms Bero, a Syrian national, was detained for nearly a month in Frankfurt prison without being separated from ordinary prisoners. Mr Bouzalmate, a Moroccan national, was detained for three months in a separate area of the prison of the city of Munich. Ms Pham, a Vietnamese national, was for over three months in a prison in Bavaria because she allegedly consented to be detained with ordinary prisoners.

German courts referred questions to the CJEU concerning the compatibility of the above detentions with Article 16(1) of the Returns Directive, which provides that ‘Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners’, and Article 18(1) on ‘emergency situations’, which permits, inter alia, a derogation from Article 16(1) ‘in situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State’.

Questions referred for a preliminary ruling

1. Does Article 16(1) of [the Returns Directive] also require a Member State to carry out detentions for the purpose of removal as a rule in specialised detention facilities when such facilities exist in only one part of the federal subdivisions of that Member State but not in others? (Bero & Bouzalmate)

2. Is it consistent with Article 16(1) of [the Returns Directive] to place a pre-deportation detainee in accommodation together with prisoners if he consents to such accommodation? (Pham)

Consideration of the questions referred

The CJEU gave one judgment on Bero & Bouzalmate, and a separate judgment on Pham.

Bero & Bouzalmate

On the first question, the CJEU notes that Article 16(1) ‘is imposed upon the Member States as such, and not upon the Member States according to their respective administrative or constitutional structures’ [28]. Therefore, if a federated state within a Member State lacks the possibility to detain migrants pending removal in specialised detention facilities, then this ‘cannot amount to sufficient transposition of [the Returns Directive]’ [30]. While this does not mean that every federated state must have specialised facilities, the CJEU requires federated states to enter into agreements to ensure the relocation of migrants to such facilities.

The CJEU’s operative judgment: ‘Article 16(1) of [the Returns Directive] ... must be interpreted as requiring a Member State, as a rule, to detain illegally staying third-country nationals for the purpose of removal in a specialised detention facility of that State even if the Member State has a federal structure and the federated state competent to decide upon and carry out such detention under national law does not have such a detention facility’.


On the second question, concerning the issue of consent, the CJEU says it is clear from the wording of Article 16(1) that ‘it lays down an unconditional obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners when a Member State cannot provide accommodation for those third-country nationals in specialised detention facilities’ [17]. The obligation ‘is not coupled with any exception’ [19] and ‘is more than just a specific procedural rule for carrying out the detention of third-country nationals in prison accommodation and constitutes a substantive condition for that detention’ [21]. Therefore, Article 16(1) ‘must be interpreted as not permitting a Member State to detain a third-country national for the purpose of removal in prison accommodation together with ordinary prisoners even if the third-country national consents thereto’ [23].

Read the judgments of the CJEU in Bero & Bouzalmate and Pham, the CJEU’s press release on all three cases, and a summary of the AG Opinion on all three cases in the 9 May 2014 Weekly Legal Update.

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Judgment in Case C-338/13 Noorzia

(Request for a preliminary ruling — Right to family reunification — Directive 2003/86/EC — Article 4(5) — Provision of national law under which the sponsor and his/her spouse must have reached the age of 21 by the date on which the application for family reunification is lodged — Interpretation in conformity with EU law)

Facts of the case

Council Directive 2003/86/EC on the right to family reunification determines the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. Under Article 4(5), ‘In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’. Austrian law requires both the sponsor and spouse to be 21 at the time the application for reunification is submitted.

Mrs Noorzia, an Afghan national, submitted an application at the Austrian embassy in Islamabad (Pakistan) for family reunification with her husband, an Afghan national living in Austria. The Austrian authorities rejected the application because, at the time it was submitted, the husband was under 21. By the time the rejection decision was made, the husband had turned 21, which prompted Mrs Noorzia to appeal, and in turn motivated the Verwaltungsgerichtshof (the Austrian Higher Administrative Court) to refer a question on the compatibility of this decision with Article 4(5).

Question referred for a preliminary ruling

Is Article 4(5) of Council Directive 2003/86/EC to be interpreted as precluding a provision under which spouses and registered partners must already have reached the age of 21 years at the time at which the application is submitted in order to be considered to be entitled to join other family members?

Consideration of questions referred

Because Article 4(5) ‘does not define the date by reference to which the national authorities must assess whether or not the minimum age of 21 laid down by the provision has been attained’ [13], the CJEU infers that ‘the EU legislature intended to leave to the Member States a margin of discretion, subject to the requirement not to impair the effectiveness of EU law’ [14]. The requirement that age 21 must be reached prior to lodging an application (a) ‘does not prevent the exercise of the right to family reunification nor render it excessively difficult’ [16], (b) does not undermine the purpose of preventing forced marriage, (c) ‘is consistent with the principles of equal treatment and legal certainty’ [17], and (d) ensures that ‘the success of the application depends principally on circumstances attributable to the applicant and not to the administration, such as the length of time taken considering the application’ [18]. For these reasons, the CJEU rules that Member States are not precluded from requiring both spouses in a family reunification application to be aged 21 before the application is lodged.

The CJEU’s answer goes against the Opinion of Advocate General Mengozzi, who argued that, on a literal interpretation of Article 4(5), the relevant time at which to consider the age of the applicant is the time of the authorities’ decision, not the time of the application. The AG reasoned that such an interpretation promotes the fundamental right to family life, does not frustrate the legitimate objective of preventing forced marriages, and counteracts an overly formalistic reading of the Directive. In addition, no provision of the Directive makes reaching the age of 21 a prior requirement before the initial making of an application for family reunification.

Read the judgment and press release of the CJEU.

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Judgment in Joined cases C-141/12 & C-372/12 Y.S. & M and S 

(Request for a preliminary ruling â€” Protection of individuals with regard to the processing of personal data â€” Directive 95/46/EC â€” Articles 2, 12 and 13 â€” Concept of ‘personal data’ â€” Scope of the right of access of a data subject â€” Data relating to the applicant for a residence permit and legal analysis contained in an administrative document preparatory to the decision â€” Charter of Fundamental Rights of the European Union â€” Articles 8 and 41)

Facts of the cases

In both cases, asylum seekers in the Netherlands sought access under the Data Protection Directive to the contents of the internal file documents prepared by the authorities in the course of the asylum procedure. Domestic proceedings resulted in questions concerning the data protection rights of asylum seekers being referred to the CJEU, which joined the two cases.

Questions referred for a preliminary ruling


1. Are the data reproduced in the minute concerning the data subject and which relate to the data subject personal data within the meaning of Article 2(a) of [Directive 95/46]?

2. Does the legal analysis included in the minute constitute personal data within the meaning of the aforementioned provision?

3. If the Court of Justice confirms that the data described above are personal data, should the processor/government body grant access to those personal data pursuant to Article 12 of [Directive 95/46] and Article 8(2) of the Charter?

4. In that context, may the data subject rely directly on Article 41(2)(b) of the Charter, and if so, must the phrase “while respecting the legitimate interests of confidentiality [in decision-making]” included therein be interpreted in such a way that the right of access to the minute may be refused on that ground?

5. When the data subject requests access to the minute, should the processor/government body provide a copy of that document in order to do justice to the right of access?

M & S

1. Should the second indent of Article 12(a) of [Directive 95/46] be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned is provided?

2. Should the words “right of access” in Article 8(2) of [the Charter] be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if there is provision of a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned within the meaning of the second indent of Article 12(a) of [Directive 95/46]?

3. Is Article 41(2)(b) of [the Charter] also addressed to the Member States of the European Union in so far as they are implementing EU law within the meaning of Article 51(1) of that Charter?

4. Does the consequence that, as a result of the granting of access to “minutes”, the reasons why a particular decision is proposed are no longer recorded therein, which is not in the interests of the internal undisturbed exchange of views within the public authority concerned and of orderly decision-making, constitute a legitimate interest of confidentiality within the meaning of Article 41(2)(b) of [the Charter]?

5. Can a legal analysis, as set out in a “minute”, be regarded as personal data within the meaning of Article 2(a) of [Directive 95/46]?

Consideration of the questions referred

Is ‘legal analysis’ personal data?

The CJEU decided that ‘the legal analysis in a minute ... although it may contain personal data, ... does not in itself constitute such data’ [39]. ‘[S]uch a legal analysis is not information relating to the applicant for a residence permit, but at most, in so far as it is not limited to a purely abstract interpretation of the law, is information about the assessment and application by the competent authority of that law to the applicant’s situation’ [40]. ‘[E]xtending the right of access of the applicant for a residence permit to that legal analysis would not in fact serve the directive’s purpose of guaranteeing the protection of the applicant’s right to privacy with regard to the processing of data relating to him, but would serve the purpose of guaranteeing him a right of access to administrative documents, which is not however covered by Directive 95/46’ [46].

What is the scope of the right of access to personal data?

The asylum seekers sought to obtain a full copy of the internal documents. The CJEU ruled above that not all of the internal documentation constitutes personal data. In addition, the Directive leaves some discretion to the Member States concerning the form of document to which data subjects have access. For these reasons, the CJEU concluded that ‘an applicant for a residence permit has a right of access to all personal data concerning him which are processed by the national administrative authorities within the meaning of Article 2(b) of that directive. For that right to be complied with, it is sufficient for the applicant to be provided with a full summary of those data in an intelligible form, that is, a form which allows him to become aware of those data and to check that they are accurate and processed in compliance with that directive, so that he may, where relevant, exercise the rights conferred on him by that directive’ [60].

Article 41(2)(b) of the EU Charter of Fundamental Rights

The CJEU rejects the application of this provision on the basis of the wording of the Charter itself. Article 41(2)(b), which guarantees ‘the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy’, can only be relied on against ‘institutions, bodies, offices and agencies of the Union’, and not against Member States. However, the CJEU does note that the ‘right to good administration, enshrined in that provision, reflects a general principle of EU law’ [68].

Read the judgment of the CJEU, and analysis by Professor Steve Peers.

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AG Opinion in Case C-542/13 M'Bodj 

(Common European Asylum System - Directive 2004/83/EC - Minimum standards for the conditions to be fulfilled by third-country nationals or stateless persons requesting subsidiary protection - Third-country national suffering from a disability and authorized by a Member State to reside on its territory for medical reasons - Included in the scope of Directive 2004/83 - Article 2(e) - Definition of 'person eligible for subsidiary protection' - Article 15 b) - Definition of the term 'serious harm' - Real risk of suffering inhuman or degrading treatment upon return to the country of origin - Content of international protection - Articles 28 and 29 - Social and Medical Services - Equal treatment)

Facts of the case

Mr M’Bodj, a Mauritanian national, was granted a residence permit in Belgium for medical reasons (a major eye disability), on the basis that his removal to Mauritania would subject him to a real risk of inhuman or degrading treatment due to the lack of adequate medical treatment. Under Belgian law transposing the Qualification Directive, he has been granted neither refugee status nor subsidiary protection, and because of this he is not entitled to a disability allowance. Domestic litigation concerning Mr M’Bodj’s entitlement under EU law to such an allowance reached the Belgian Constitutional Court, which referred two questions to the CJEU.

Questions referred for a preliminary ruling

1. Must Articles 2(e) and (f), 15, 18, 28 and 29 of [the Qualification Directive] be interpreted as meaning that not only a person who has been granted, at his request, subsidiary protection status by an independent authority of the Member State must be entitled to benefit from the social welfare and health care referred to in Articles 28 and 29 of that directive, but also a foreign national who has been authorised by an administrative authority of a Member State to reside in the territory of that Member State and who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment in the case where there is no appropriate treatment in his country of origin or in the country in which he resides?

2. If the answer to the first question ... is that the two categories of persons who are there described must be capable of benefiting from the social welfare and health care referred to therein, must Articles 20(3), 28(2) and 29(2) of [the Qualification Directive] be interpreted as meaning that the obligation imposed on Member States to take into account the specific situation of vulnerable persons such as disabled people implies that the latter must be granted the allowances provided for by the Law of 27 February 1987 concerning allowances for disabled people, in view of the fact that social assistance which takes account of the handicap may be granted pursuant to the Basic Law of 8 July 1976 on public social welfare centres?

Consideration of the questions referred

Advocate General Bot recommends the CJEU to rule that those granted residence on medical grounds are not covered by the definition of ‘person eligible for subsidiary protection’ under Article 2(e) of the Qualification Directive. For this reason, the AG concludes that the right to social welfare and health care under Articles 28 and 29 of that Directive cannot be asserted. Because of the AG’s recommended answer to the first question, he does not consider it necessary to answer the second.

In his reasoning, the AG notes that ‘serious harm’ according to Article 15 of the Qualification Directive, a real risk of which makes a person eligible for subsidiary protection, includes harm caused by inhuman or degrading treatment. Such treatment is, in essence, akin to that referred to in Article 3 of the European Convention on Human Rights (ECHR). The threshold for a violation of Article 3 has been held by the European Court of Human Rights to be met in certain very exceptional circumstances due to the unavailability of medical treatment. The essential question is therefore whether the protections in the Qualification Directive can likewise apply to this lack of available treatment.

The AG rejects such an application, noting that ‘if, in special circumstances, suffering due to disease is likely to constitute inhuman or degrading treatment, the fact remains that a key to the granting of subsidiary protection, namely the identification of an actor behind the treatment and against which protection is required, is lacking’ [49]. Based on Articles 6 and 15 of the Qualification Directive, an ‘essential element’ in the granting of international protection is ‘the direct or indirect liability’ of the public authorities in the country of origin by either encouraging or tolerating the persecution [51]. To be eligible for subsidiary protection, one must not only prove a real risk of serious harm, but also ‘must still demonstrate that this risk arises from factors that are directly or indirectly attributable to the public authorities’ [58]. Harm brought about by inadequate medical treatment ‘is not due to an act or wilful omission of the public authorities’, and direct or indirect responsibility of those authorities is therefore lacking [59].

An application to stay on medical grounds is to ‘request another kind of protection, outside the scope of this Directive’, as foreseen in Article 2(g). Even though it is outside the scope of the Directive, AG Bot highlights that protection on medical grounds falls within scope of Article 3 ECHR and Article 4 and 19(2) of the EU Charter of Fundamental Rights, which can lead the enforcement of expulsion to amount to inhuman treatment [61]. AG Bot supports his reading of the Directive by reference to a preparatory note written by the Presidency of the Council concerning the drafting of the Directive. He also refers to recital 9, which states: ‘Those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive’.

Read the AG Opinion (French only).

Based on an unofficial ECRE translation.

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AG Opinion in Joined cases C-148/13 C-149/13 C-150/13 A, B, C

(Common European Asylum System — Directive 2004/83/EC — Refugee status — Directive 2005/85/EC — Assessment of applications for international protection — Assessment of facts and circumstances — Credibility of an applicant’s averred sexual orientation)

Facts of the cases

A, B and C are all homosexual men who claimed asylum in the Netherlands on the basis that they faced persecution due to their sexual orientation in their countries of origin. The Dutch authorities rejected their requests due to a perceived lack of credibility, notwithstanding A’s willingness to submit himself to an examination and C’s production of a film depicting himself performing sexual acts with another male. B’s account was considered vague. C was criticised for his account changing over the course of the procedure, and his lack of knowledge of Dutch homosexual rights NGOs.

Hearing the appeals of the applicants, the Dutch Raad Van State referred a question to the CJEU concerning what limits EU law places on credibility assessments of sexual orientation asylum claims.

Question referred for a preliminary ruling

What limits do [the Qualification Directive], and [the EU Charter of Fundamental Rights], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?

Consideration of the question referred

Advocate General Sharpston notes the consensus between parties that ‘there is no objective method of verifying an averred sexual orientation’ [36]. She goes on to argue that ‘[a]n applicant’s definition of his own sexual orientation ... should, at the very least, form the starting point of the assessment process’ [40].

The AG identifies verification practices that would be inconsistent with Articles 3 (right to integrity) and 7 (right to private life) of the EU Fundamental Rights Charter, even if consented to by the applicant: (1) medical tests purporting to determine the applicant’s sexual orientation; (2) the pseudo-medical test of phallometry (assessing the response of the applicant to viewing pornography); (3) explicit questions concerning an applicant’s sexual activities and proclivities; (4) requiring applicants to ‘produce evidence such as films or photographs or to request them to perform sexual acts in order to demonstrate their sexual orientation’ [66].

Regarding consent, the AG ‘entertain[s] serious doubts as to whether an applicant, who is the vulnerable party in the procedure of applying for refugee status, could really be deemed to have given fully free and informed consent to the competent national authorities in such circumstances’ [67]. For each of the above methods, the AG also doubts the probative value in distinguishing between genuine and bogus claims. Further, relying on ‘stereotypical notions’ [68] of sexual orientation is inconsistent with Article 4(3)(c) of the Qualification Directive, which requires the competent authorities to take account of the individual and personal circumstances of the applicant in question.

Instead, ‘[t]he assessment to establish whether refugee status should be afforded should ... focus upon whether the applicant is credible. That means considering whether his account is plausible and coherent’ [69].

The official CJEU press release summarises AG Sharpston’s recommended approach to credibility assessment: ‘the asylum procedure is one of cooperation, rather than a trial. It is neither for the authorities to disprove the asylum seeker’s claim nor for him to prove it but rather for both parties to work towards a common goal. She therefore considers it important that the official making the decision has either seen the applicant’s demeanour when giving his account (which is preferable) or at the very least has a full report including such information. She further recommends that, in order to respect the principle that every person has a right to be heard before a decision is taken which adversely affects him asylum seekers should have an opportunity to address any specific issue concerning the credibility of their account which arises during the course of the procedure before a final decision is made’.

Read the AG Opinion and the CJEU’s press release.

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National Developments

Norway: Appeals Board temporarily suspends all forced returns to Gaza

The Norwegian Immigration Appeals Board has temporarily suspended all forced returns to Gaza and has suspended the duty to leave Norway for persons with enforceable negative decisions who have Gaza as their intended destination of return.

Read the announcement (Norwegian only) on the website of the Appeals Board.

The Weekly Legal Update would like to thank Halvor Frihagen, the Norwegian ELENA coordinator, for informing ECRE about this development.

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United Kingdom: Residence test for legal aid declared unlawful by the High Court

In Public Law Project v Secretary of State for Justice [2014] EWHC 2365, the High Court of England and Wales declared that the government’s proposal to introduce a ‘residence test’ for civil legal aid is unlawful. Such a test would bar from civil legal aid those who could not prove 12 months lawful residence in the UK. Asylum seekers and refugees are exempted from satisfying the test.

The proposed residence test would withhold legal aid from, for example, a woman who, recently arriving in the UK for the purposes of refugee family reunion with her husband, seeks legal advice in relation to the failure of the local authority to assess the needs of her autistic eight year old son.

The residence test was to become secondary legislation under the authority of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, the High Court ruled that the proposed residence test was not something permitted by the Act, on the ground that it was inconsistent with the Act’s object and purpose, which was to restrict legal aid to cases of greatest need. The High Court regarded the residence test as unconnected with need and instead seeking to deny legal aid in meritorious cases to those with high priority need.

In addition, even if the residence test were permitted under the 2012 Act, the High Court ruled that ‘…it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not’ [83]. The Court reasoned that the provision of legal assistance is far from analogous to the distribution of welfare benefits, and ‘the mere saving of cost cannot justify discrimination’ [82]. ‘[I]nvoking public confidence amounts to little more than reliance on public prejudice’ [84].

Read the judgment and summary of the High Court. 

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United Kingdom: Upper Tribunal Country Guidance on Libya

The UK Upper Tribunal has published updated guidance on assessing protection claims lodged by Libyans. The Tribunal concludes that ‘[t]here is not such a high level of indiscriminate violence in Libya, within the meaning of Article 15(c) of [the Qualification Directive] so as to mean that substantial grounds exist for believing that an individual would, solely by being present there, face a real risk which threatens his or her life or person’.

The following profiles are, however, in general at real risk of ill-treatment if returned to Libya: (1) former high ranking officials within the intelligence services of the Qadhafi regime and others with an association at senior level with that regime (but not generally the family members of such officials); (2) Tawurgans and Tuareg (‘Black Libyans’) as well as Mashashiyans; (3) women who are of African ethnicity, or who are victims of sexual violence, or who are accused/suspected of sexual conduct against family honour.

The guidance concludes that internal relocation is generally not an option for persons of the above profiles. For those whose risk is not related to an above profile but is instead based on local risk due to, for example, a family or tribal feud, travel is safe and possible in practice, even in the absence of connections in the area of relocation. However, regard must be had for any connections enjoyed by the feared group or individual. For women, ‘internal relocation would not be reasonable and would be unduly harsh unless in the prospective area of relocation the woman has a close family or significant other connection, aside from merely a tribal connection’.

Read the Upper Tribunal’s guidance.

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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 Matthew Fraser (mfraser@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

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