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ELENA Weekly Legal Update (EWLU)

4 November 2016
 

Summary

 
The ELENA Weekly Legal Update will take a break from next week and will resume on 18 November 2016. In the meantime, keep an eye on our Facebook and Twitter for regular updates.
 
 

European Court of Human Rights


Communicated case:
 

Nur Ahmed v. Ukraine and 5 other appliations (no. 42779/12), communicated on 20 September 2016 – immigration arrest and detention

On 20 September 2016, the European Court of Human Rights communicated the case Nur Ahmed v. Ukraine and 5 other applications (no. 42779/12), which relates to the immigration arrest and detention of nine Somali nationals in Ukraine.

The applicants submitted an application to the ECtHR complaining that their arrest and detention were unlawful under Article 5 ECHR. In addition, the first applicant complains that his detention was contrary to Article 5(1)(f) ECHR and that the proceedings did not meet the ‘speediness’ requirement of Article 5(4) ECHR. The sixth to ninth applicants complain, relying on Article 6(1) ECHR, that the proceedings relating to their appeals were excessively long.

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European Union


Request for a preliminary ruling from the District Court of The Hague (Netherlands) on the issue of family reunification for an ‘aged out’ unaccompanied child and her parents

The District Court of The Hague (Netherlands) has referred a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Article 2(f) of the Family Reunification Directive (2003/86/EC).

The reference relates to a refugee who entered the Netherlands as an unaccompanied child. By the time she was granted refugee status, she had turned 18, but her status was retrospectively applied to the date of application. The applicant then requested family reunification with her parents. This was rejected because she was no longer a underage child.

The District Court has referred the following question to the CJEU:

Should ‘unaccompanied minor’ within the meaning of Article 2(f) of the Family Reunification Directive be understood to include a third-country national or stateless person below the age of eighteen, who has arrived on the territory of a Member State unaccompanied by an adult responsible by law or by custom, and who:         

a.     applies for asylum;
b.     turns 18 on the territory of the Member State during the asylum procedure;
c.     gets granted asylum retrospectively to the date of application; and
d.     subsequently requests family reunification? 
 
Based on an unofficial translation by the ELENA Weekly Legal Update.

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Council of Europe


Anti-torture Committee publishes report on Hungary regarding immigration detention

The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has published a report on their visit to Hungary from 21 to 27 October 2015. The report examines the treatment and conditions of detention for foreign nationals deprived of their liberty as well as the legal safeguards offered to them. To this end, the delegation visited several detention centres for foreigners, police detention facilities and a prison, as well as two so-called “transit zones” located at the border with Serbia.
 
As regards immigration and asylum detention centres, the CTP notes that material conditions varied considerably from one establishment to another. In particular, the provision of psychological and psychiatric care was clearly insufficient, and sometimes non-existent. Moreover, the CPT is concerned that hardly any arrangements have been put in place to cater for the needs of young children held with their families at various reception centres.
 
Foreign nationals in immigration and asylum detention also were not provided with adequate information on their legal situation, on the future steps in their respective proceedings and the length of their detention. The CPT further expresses doubts, in view of the relevant legislative framework and its practical operation, whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and whether they involve an individual assessment of the risk of ill-treatment in the case of removal.
 
In their response, the Hungarian government considers most of the CPT’s recommendations to be unjustified.

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United Nations


UNHCR publishes International Protection Considerations with regard to people fleeing northeastern Nigeria and the surrounding areas

UNHCR has published the International Protection Considerations with regard to people fleeing northeastern Nigeria (the states of Borno, Yobe and Adamawa) and surrounding areas. The Considerations examine, inter alia, the developments in the conflict, the human rights developments, the humanitarian situation and the internal and external displacements.
 
As the situation in northeastern Nigeria, particularly in Adamawa, Borno, and Yobe States, remains fluid and uncertain, UNHCR calls on neighbouring countries to keep their borders open and to allow access to both their territory and asylum procedures for persons fleeing the crisis in search of safety. In addition, many persons fleeing northeastern Nigeria may meet the 1951 Convention criteria for refugee status. UNHCR further calls upon states to suspend forcible returns of nationals or habitual residents to this part of Nigeria, including those who have had their asylum claim rejected, until the security and human rights situation has improved considerably. Any proposed returns in the context of the application of an internal flight or relocation alternative would need to be assessed carefully, taking into account the individual circumstances of the case. Depending on the profile of the individual case, exclusion considerations may need to be looked into.

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National Developments


Belgium: CALL orders the Aliens Office to grant a humanitarian visa to a Syrian Family

On 20 October 2016, the Council for Aliens Law Litigation (CALL) ordered the Aliens Office to grant humanitarian visas to a Syrian family. The case relates to a Syrian couple with two underage children, who are currently living in war-torn Syria. The family applied for humanitarian visas at the Belgium embassy in Beirut. Their family friends in Belgium have promised to act as their guarantors.
 
The Aliens Office rejected the applicants’ applications for humanitarian visas up to three times. The applicants appealed these decisions to the CALL, which overturned the decisions of the Aliens Office. Following this third attempt, the CALL ordered the Aliens Office to grant the humanitarian visas to the Syrian family within 48 hours. As the Aliens Office refused to execute this CALL decision, the Tribunal of First Instance has issued a fine on the State of €1000 per person per day until the decisions are properly executed.
 
Based on an unofficial translation by the ELENA Weekly Legal Update.

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ECRE


ECRE: Comments on the proposal for a Qualification Regulation

ECRE has published its Comments on the European Commission’s proposal for a Qualification Regulation, defining the criteria for obtaining refugee status or subsidiary protection in the EU and the content of international protection. The proposal would transform the current Qualification Directive into a Regulation, directly applicable across those Member States who agree to opt in. ECRE is concerned that the overall objectives and main reforms of the proposal raise critical concerns from both a protection and policy perspective.
 
The harmonisation of the qualification criteria for international protection would severely restrict the protection space in the EU and would further distance the Common European Asylum System (CEAS) from the 1951 Refugee Convention. Stricter, mandatory rules are envisaged in relation to the internal protection alternative, which would oblige states to reject asylum applications if they find that a person could have sought protection in another part of their home country. On the other hand, expanded possibilities for excluding persons from refugee status or subsidiary protection – be it directly under the exclusion grounds or through the problematic “revocation and non-renewal” clauses – run a real risk of denying status to those in need of it.
                                                                                                             
Rather paradoxically, the opportunity for closer harmonisation is missing in the area where it is most needed. Rules on the rights of beneficiaries of protection remain divergent still distinguish refugees from subsidiary protection beneficiaries without justification, namely in relation to social assistance, the duration of residence permits and the corollary provisions on review of status. The distinctions between the two statuses are becoming all the more concerning, and this has led to more people contesting incorrect protection decisions.

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AIDA legal briefing: Unravelling Travelling – travel documents for beneficiaries of international protection

The Asylum Information Database (AIDA) has published a new legal briefing on travel documents for beneficiaries of international protection. The briefing analyses the obligation arising from the 1951 Refugee Convention, the recast Qualification Directive and the proposed Qualification Regulation and how different countries have implemented these. Other topics discussed in the legal briefing are the recognition of travel documents issued by other countries and the transfer of responsibility for refugees. Overall, European practice shows a fragmented legal framework leading to widely different treatment as to the content of the right to travel across Europe.

Based on the AIDA article dated 28 October 2016, available here.

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EDAL Blog: Justiciable rights stemming from delays in first instance determination decisions

A new EDAL blog assesses the substantive rights which may be breached as a consequence of lengthy delays in issuing first instance decisions on asylum applications.
 
Amanda Taylor, the author and EDAL Coordinator, scopes out the legal framework regulating time limits for first instance decisions, notably the recast Asylum Procedures Directive as well as general principles of EU law. The blog also notes that the European Court of Human Rights, whilst unable to rule on the substantive asylum application, has read procedural guarantees into Articles 3 and 8 relating to the length of the determination procedure.
 
The contribution goes on to analyse domestic jurisprudence, notably from the German courts, who have found that delays in issuing first instance decisions breach the right to asylum in domestic law. Finally, the author assesses the implications of delays for vulnerable persons as well as the tensions that lengthy procedures create for the right to family life and the best interests of the child.

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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).
 
       

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






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