ELENA Weekly Legal Update - 9 October 2015
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9 October 2015

The ELENA Weekly Legal Update will be taking a break and will resume on the week commencing 2 November 2015. 


European Court of Human Rights

European Court of Human Rights


Launch of network on the exchange of case-law information with national superior courts

A network was launched this week, designed to facilitate the exchange of information between the ECtHR and national superior courts on the case-law of the ECHR. The first courts to sign up to the network were the French Court of Cassation and the French Conseil d’Etat. 


European Union


CJEU: Advocate General Opinion in Joint Cases C-443/14 and C-444/14 Alo and Osso  

Advocate General Cruz Villalon has given his opinion in the joint cases of Alo and Osso, in which a request for preliminary ruling was submitted by the German Federal Administrative Court (Bundesverwaltungsgericht). The case relates to freedom of movement for beneficiaries of subsidiary protection, under the Qualification Directive (‘QD’).

The two applicants are Syrian nationals who were granted subsidiary protection, and in accordance with German law as they were in receipt of social security benefits, they were issued with residence permits accompanied by an obligation to reside in a particular part of Germany. They both challenged this obligation but their appeals were rejected, upon which the matter came before the German Federal Administrative Court. It requested a preliminary ruling, referring questions on whether the German law constituted a restriction on the right of free movement under Article 33 QD (question 1). If so, it requested a ruling on whether this was justified in view of the legislation’s aim of avoiding a disproportionate social assistance burden on certain federal States or communes (question 2); and/or on grounds of migration or integration policy to avoid social tensions arising from the concentration of foreign nationals in certain districts (question 3).

The Advocate General considered it clear that the concept of freedom of movement referred to in Article 33 covered the right to freedom of choice of place of residence. This was apparent from the purpose of the Directive, the travaux préparatoires, to preserve the effectiveness of Article 33, and in light of the 1951 Geneva Convention which included within its concept of freedom of movement (in Article 26) the freedom to stay and travel freely within the host Member State. An obligation to reside in a particular place therefore was a restriction on free movement, contrary to Article 33 QD, despite the ability of those under this obligation to freely travel or stay elsewhere for a certain period.

With regard to Question 2, the Advocate General considered territorial sharing of social assistance burdens was a legitimate aim. He noted that the measure created a difference in treatment between refugees and beneficiaries of subsidiary protection, as well as between beneficiaries of international protection and other third country nationals. He found that it was not proportionate or necessary, given that it treated refugees differently to those granted subsidiary protection, and less restrictive measures were possible. The EU legislature had expressed an intention to create a uniform status for beneficiaries of international protection (Art. 78 TFEU; Art. 20(2) QD). Chapter 7 QD set out express exemptions to the general rule requiring beneficiaries of international protection to be granted the same rights and benefits, where differential treatment was permissible. The right to freedom of movement in Article 33 QD did not differentiate between the treatment of refugees and subsidiary protection holders, referring only to ‘beneficiaries of international protection’.

Finally, considering Question 3, he considered it difficult to find less restrictive measures to prevent the concentration of beneficiaries of international protection in receipt of social benefits, as part of a general migration and integration policy. However he deferred the matter to the national court for it to assess the proportionality and appropriateness of the residence obligation, balancing relevant interests, and taking into account the duration and territorial scope of the residence obligation. He noted that abstract grounds connected to migration and integration considerations would be insufficient:  there would have to be serious reasons linked to concrete factual situations and specific circumstances and respecting the principle of non-discrimination to justify the measure.

Follow this link for the full opinion, and this link for the English press release. 
Based on an unofficial ELENA translation. 
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Council of Europe

PACE: Autumn Session 

The Parliamentary Assembly of the Council of Europe (PACE) met for its Autumn Session from 28 September to 2 October and adopted a number of resolutions relevant to asylum and migration.
  • Urgent reform of the Dublin system
PACE adopted a resolution calling for the urgent reform of the Dublin system and the Common European Asylum System (CEAS). It considers the current system to be inherently dysfunctional, leading to an uneven distribution of asylum applicants between participating states and violations of asylum seeker’s human rights.  Among other recommendations made to the EU and its Member States, PACE called for a reform of the CEAS to ensure ‘equitable burden sharing’ which would include fair, compulsory allocation criteria to distribute asylum seekers while taking into account the prospects of integration and their specific circumstances and needs.  
  • Implementation of judgments of the ECtHR
PACE adopted a resolution which noted its concern about the high number of non-implemented ECtHR judgments pending before the Committee of Ministers, many of which concerned structural problems in Member States. It recommended that the Committee of Ministers take firmer measures to ensure compliance with ECtHR judgments, and improve the effectiveness of supervision of their implementation. Its findings were based on its eighth report on the implementation of judgments of the ECtHR, which identified major problems in nine Member States with the highest number of unenforced Court judgments.
  • Countries of transit
PACE recommended that the Council of Europe play a role in ensuring that Member State external migration and border policy do not result on human rights violations of migrants and refugees prevented from entering Europe, or being returned to a third country, by monitoring compliance with the principles of the judgment of Hirsi Jamaa v. Italy  and holding States accountable where there are reports of unlawful ‘push-backs’. In particular it raised concerns about recent legislative amendments in Spain which have been criticised as legalising push-backs of migrants in Ceuta and Melilla contrary to human rights law. It also called on Member States to not return asylum seekers to countries bearing a disproportionate responsibility, and/or where protection is not guaranteed on account of deficiencies in reception conditions, asylum procedures or other relevant areas.

United Nations

OHCHR: Report of the Independent Expert on the situation of human rights in Somalia 

The Independent Expert has published a report on the human rights situation in Somalia. He found that Al-Shabaab is still in control of vast territories and that the Federal Government of Somalia was constrained in ensuring human rights for its population. He referred to continued reports that IDPs in Somalia face generalised insecurity, lack of access to humanitarian assistance and human rights abuses, including evictions from settlements, rape and sexual violence. He also raised concerns as to freedom of expression for journalists and media. 

National Developments

Belgium: CALL annuls Dublin III transfer to Italy of single woman 

This case relates to a single woman originating from the DRC who claimed asylum in Belgium in December 2014. A request was made to Italy for information on whether it had issued the applicant with a visa, which she denied, and as no response was received the Belgian authorities requested that Italy ‘take back’ the applicant pursuant to Article 12(3) of the Dublin III Regulation. It deemed Italy to tacitly agree to this, and issued the applicant with a decision refusing her claim and ordering her removal to Italy.  On 28 April the Council of Aliens Law Litigation (CALL) agreed to suspend transfer after a request for under the procedure for extreme urgency.

The applicant alleged a breach of Article 12(4) of the Dublin III regulation, article 3 ECHR and article 4 CFR. She also alleged that the decision did not contain adequate reasoning contrary to the principle of good administration and did not take into account all relevant facts including information on the country of proposed return. She emphasised that Italy had not responded to the take charge request and that as a single woman she was vulnerable. 

CALL reiterated its comments in previous judgments that in view of the delicate and evolving situation in Italy, Dublin transfers to Italy should be taken with great caution, and the decision should be based on an up-to-date, comprehensive and rigorous examination of the available information. In its assessment of the information and reports submitted (including the AIDA country report on Italy of January 2015) CALL considered that despite measures taken by the Italian authorities there was no guarantee that asylum seekers sent back to Italy will obtain adequate support and would not be forced to live in extremely difficult conditions, as the reception centres did not have sufficient capacity. This finding was in spite of the ECtHR judgment of M.S.S which found that the situation in Italy was not comparable to that in Greece.

It found that given the current information and the absence of a response from Italy, the Belgian authorities should at the very least examine the risk alleged by the applicant taking into account more up to date information. It also noted that the simple fact that the applicant was considered not to be particularly vulnerable by the Belgian authorities did not absolve the authorities of this responsibility.

CALL therefore concluded that the Belgian authorities had breached its obligation to consider all elements of the case submitted to it and did not examine the case sufficiently rigorously in view of the allegation of Article 3 ECHR risk. The decision was therefore annulled.

Based on an unofficial ELENA translation. The ELENA Weekly Legal update would like to thank Tristan Wibault for informing us of this case. 

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UK: Upper Tribunal Country Guidance on Iraq, Article 15c) QD, 2004/83/EC

The Upper Tribunal in the UK has issued Country Guidance (an authoritative finding which is binding on other Tribunals which consider the same matters) on Iraq.

The case relates to a national of Iraq of Kurdish ethnicity from the governorate of Kirkuk, who claimed asylum in the UK in 2009, aged 17. His asylum application was refused and after a number of appeals and reconsiderations, the matter came before the Upper Tribunal to consider whether Article 15(c) of the Qualification Directive prevents the removal of an Iraqi national to Iraq on the basis that they are entitled to subsidiary protection.
The Tribunal gave detailed consideration to a large amount of evidence relating to the current country situation in Iraq. This included expert evidence, Home Office country information and guidance, a report from Amnesty International specifically written for the case, UNHCR’s position paper and reports from international organisations.

It found that the situation for ordinary civilians in Anbar, Diyala, Kurkuk, Ninewah and Salah Al-din where there was conflict between the Iraqi government and ISIL forces, as well as parts of the ‘Baghdad belts’ bordering these areas met the Article 15c) threshold and as such the mere presence of civilians in these areas constituted substantial grounds for believing a returned Iraqi national would face real risk of indiscriminate violence amounting to ‘serious harm’. With regard to Baghdad City, the Tribunal considered that on the evidence and in the context of the size of its population, the level of civilian deaths and injuries was not indicative of indiscriminate violence to engage Article 15c). The large movement of displaced people from the contested areas to Baghdad indicated that there was less violence there, and the circumstances of daily life were very different in Baghdad than in the contested areas.

Turning to the issue of internal relocation, the Tribunal noted that as per Home Office policy, Iraqi nationals would only be forcibly returned to Baghdad or the IKR, and only to the latter where the person originated from the IKR and had been pre-cleared for return by the authorities. It found that it would be in general reasonable and not unduly harsh to expect a person to relocate to Baghdad if there was an article 15c) risk in their home area. There was an exception to this for a national who would be unable to replace their Civil Status ID Card (CSID) or Nationality Certificate (which is necessary to access a range of services) who would be likely to face significant difficulties in accessing services and a livelihood and would therefore face destitution that would meet the threshold of Article 3. In this situation, return would not be feasible. Internal relocation to the IKR was also possible for Iraqi Kurds, depending on the facts, but would be unreasonable for non-Kurds.

Considering the appellant’s situation, he originated from Kirkuk so would face an article 15c) risk on return there. However his return was not currently feasible as he did not have the necessary documentation to replace his CSID. The case was remitted to the First-Tier tribunal to make findings of fact on whether he would be entitled to humanitarian protection based on his individual circumstances.  
Please note that the UK has opted out of implementing the recast Qualification Directive, which means that Directive 2004/83/EC continues to apply.


EDAL: Prolonging detention under the Return Directive in Poland

Karolina Rusilowicz, lawyer for the Helsinki Foundation for Human Rights in Poland, and ELENA National Coordinator has written an article for the EDAL journal relating to the compatibility of Polish legislation which prolongs pre-removal detention to a maximum of 18 months for those that have lodged a challenge against a return decision, with EU and human rights law.  

The article provides information on the background to the Polish Law on Foreigners and the transposition of the Return Directive in Poland. Her analysis shows that the national legislation is not compatible with Article 15 of the Return Directive, which sets out exhaustive grounds for detention for the purpose of removal, and is contrary to the jurisprudence of the CJEU on effective remedy and the ECtHR on Article 5. 

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Danish Immigration Service: COI report on South Central Somalia 

Following a fact-finding mission in May 2015, the Danish Immigration Service has published a Country of Origin Information report for use in the asylum determination process, relating to South Central Somalia. It contains factual information on the security and human rights situation in that region, based on approved notes from meetings with interlocutors. It does include any policy recommendations or analysis. 

Migration Law Clinic: expert opinions on medical reports in subsequent asylum applications in the Netherlands

The Migration Law Clinic of the VU University of Amsterdam has published two expert opinions on Dutch law on medical reports in subsequent asylum applications, which means that they may not be considered as new facts. The first expert opinion addresses whether this is in compliance with international law, with reference to ECtHR case law, the views of the Committee against Torture and the Human Rights Committee.  The second expert opinion considers the Dutch legal framework and practice with regard to EU law, in particular the recast Asylum Procedures Directive
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 Zarina Rahman (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).

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