ELENA Weekly Legal Update (EWLU)

15 April 2016


European Court of Human Rights National Developments Other

European Court of Human Rights

Sh. D and Others v. Greece (no. 14165/16) [Articles 3 & 5] – case communicated 15 March 2016

The case of Sh. D and Others v. Greece was communicated on 15 March 2016 and relates to five unaccompanied Afghan minors between 14 and 17 who arrived in Greece at the beginning of the year. One of the applicants was placed in custody in a centre for minors in Polygyros and was later transferred to a reception centre for minors. The others are currently at the Idomeni camp near the border with FYROM. The first applicant complains that the conditions and lawfulness of his detention at Polygyros violate Articles 3 and 5 ECHR. The other applicants allege that the living conditions in the Idomeni camp are contrary to Article 3 ECHR.
The ECtHR’s questions to the parties raise issues relating to the obligations of Greece towards migrants that are unaccompanied minors but who have not sought asylum, and the stage at which protective measures for the benefit of those who have not sought asylum come into effect.

Based on an unofficial ELENA translation.

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National Developments

Austria: proposed changes to asylum law

The government of Austria has proposed a bill which would fundamentally change the Austrian asylum system. The legislative proposals, which were debated in Parliament on Thursday 14 April are justified by the government on the basis of “the maintenance of public order and to safeguard internal security during the implementation of border controls” and are due to enter into force on 1 June 2016.

The Minister of Interior will be able to establish registration centres at the Austrian border, as part of the police directorates. The government will be able to determine a threat to public order and internal security by decree in agreement with the main parliamentary committee. Once that has been done, asylum applications can only be submitted at the border. Those irregularly entering Austria or evading border controls will be required to submit their applications for asylum to police officials at these border centres. Police officials will then assess whether it is possible to immediately reject the person at the border or issue a return decision after an initial interview. Austrian law means that there is a delay between the submission of an asylum claim and its formal registration. This means that during the border assessment applicants will not have the right to remain on the territory and can be rejected and returned to their country of entry on ‘safe third country’ grounds.

Rejection at the border will not be possible where this would violate Article 2, 3 or 8 ECHR. Individuals will not be issued with a written decision and there would be no suspensive effect given to any appeal against rejection.  

The ELENA Weekly Legal Update would like to thank the ELENA national coordinator for Austria, Gloria Kinsperger, for providing this information.Please also see the AIDA article dated 10 April 2016 available here.

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Belgium: CALL suspends Dublin III transfer of family with minor to Spain 

This case relates to a Syrian family who arrived in Belgium in October 2016 and lodged an application for asylum. The Spanish authorities accepted a take back request made by the Belgian authorities under the Dublin III Regulation, as they had been fingerprinted there in September 2015 after arriving in Melilla.  The applicants’ were ordered to leave the territory of Belgium on the basis that Spain, and not Belgium, was responsible for examining their asylum claim. The applicants’ requested suspension of this decision before the Council of Aliens’ Law Litigation (CALL) pursuant to the extreme urgency procedure. They alleged a real risk of Article 3 ECHR harm upon transfer to Spain on account of the poor reception conditions for asylum seekers there.

 At the time of the challenge their child, who was born in Belgium, was three months old. The mother alleged that whilst in Spain they did not receive adequate reception, and that she was separated from her husband and forced to sleep in a tent for three nights while heavily pregnant.

The CALL considered the decision in Tarakhel noting that children were extremely vulnerable and required reception conditions adapted to their age and vulnerability. It further noted the need to take into account the best interests of the child, also provided for in Article 6 of the Dublin regulation. It considered, in view of the reports submitted by the applicants, including by the UNHCR, that there were doubts as to whether the reception conditions in Spain would comply with Article 3 ECHR. It concluded that due to the particular circumstances of the case and the very young age of the child, the condition of extreme urgency had been met, and there had been a prima facie breach of the duty to properly motivate the decision. There had not been a sufficiently rigorous review of the situation in Spain, given that elements had been raised indicating the existence of a real risk of Article 3 ECHR harm.

It found that the necessary conditions under the extreme urgency procedure had therefore been met, and ordered the suspension of the execution of the decision refusing entry to the applicants and ordering them to leave the territory.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Valerie Klein for providing this judgment and her assistance with the summary

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UK: Country Information and Guidance report on Yemen

The UK Home Office has published a country and information and guidance report to assist its decision makers in international protection claims relating to the security and humanitarian situation in Yemen.

It finds that the situation in Aden and some areas of Southern Yemen are not in general at such a level as to breach Article 3 ECHR, it may do so for vulnerable people. The individual circumstances of each case should be considered on its merits, taking into account up to date country information, given the fluid and volatile situation there. Conditions in the north, west and centre of the country are likely in many cases to breach Article 3 with internal relocation/flight alternative unlikely to be viable for most people.

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Odysseus Network: Prizes for publications on EU Immigration or Asylum Law 

The Odysseus Academic Network is proud to announce the launch of two annual prizes recognising outstanding academic research in the area of European Immigration or Asylum Law. Applications are now open. Full details, conditions and the application form can be seen on the Odysseus website.

The Young Researcher Prize will be awarded to one author aged 35 or younger for excellent published work in this area. The Best Publication Prize recognises an outstanding contribution to the field by a more experienced researcher or professor. Applications from all European countries will be considered, with the prizes seeking in particular to honour publications from countries where research in the area is still limited.

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Right to Remain: Toolkit on immigration and asylum in the UK 

UK NGO Right to Remain have updated and expanded its Toolkit which gives an overview of the UK immigration and asylum system

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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 Zarina Rahman (, or Julia Zelvenska (

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