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ELENA Weekly Legal Update (EWLU)

14 October 2016
 

Summary


European Court of Human Rights

European Court of Human Rights


B.A.C. v. Greece (no. 11981/15) [Articles 3, 8 and 13], 13 October 2016

On 13 October 2016, the European Court of Human Rights gave its judgment in B.A.C. v. Greece (no. 11981/15) concerning the failure of the Greek authorities to process the applicant’s asylum claim and the effect of such a delay on the individual’s right to family life.
 
The case relates to a Turkish national, who had been waiting for a decision from the Greek authorities regarding his asylum application since 2002. The applicant submitted an application to the ECtHR complaining of an interference with his private life in breach of Article 8 ECHR because he had been living in Greece for 12 years with an uncertain status. He further claimed that he faced a real risk of being subjected to ill-treatment if he were returned to Turkey in violation of Article 3 ECHR. In relation to both these complaints, he also held that he did not have an effective remedy by which to complain of these violations.
 
In relation to Article 8 ECHR, the Court found that the competent authorities had failed to comply with their positive obligation under Article 8 ECHR to provide an effective and accessible means of protecting the right to private life. This should have been done through appropriate regulations ensuring that the applicant’s asylum application was examined within a reasonable time in order to keep his state of uncertainly to a minimum. In addition, the Court held that there had been a violation of Article 13 ECHR in conjunction with Article 8 ECHR.
 
In relation to Article 3 ECHR in conjunction with Article 13 ECHR, the Court concluded that there would be a violation of both Articles if the applicant were returned to Turkey without an assessment of his prospective personal circumstances. In their assessment, the Court considered the evidence, submitted by the applicant in support of his asylum application in Greece, as conclusive given previous ill-treatment in Turkey. Moreover, the Court observed that the legal status of the applicant remained uncertain because his asylum application still had to be determined. This put him at risk of sudden removal to Turkey without an effective examination of his asylum claim.  
 
Based on an unofficial translation by the ELENA Weekly Legal Update.

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Communicated cases:
 

Razigdad v. Russia (no. 30764/13), communicated on 19 September 2016

On 19 September 2016, the European Court of Human Rights communicated the case Razigdad v. Russia (no. 30764/13), which relates to the deportation of an Afghan national from Russia to Afghanistan. The Russian authorities have rejected his application for temporary asylum. The applicant is married and has two children, all of whom are Russian citizens.   
 
The applicant submitted an application to the ECtHR complaining that his deportation to Afghanistan would subject him to a risk of ill-treatment and would adversely affect his right to respect for his personal and family life. In addition, the applicant complained of the lack of effective remedies against those violations.
 
The Court’s questions to the parties raise issues relating to the applicant’s right to respect for his personal and family life and his right to an effective remedy.

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S.D. and Others v. Bulgaria (no. 8138/16), communicated on 20 September 2016

On 20 September 2016, the European Court of Human Rights communicated the case S.D. and Others v. Bulgaria (no. 8138/16), which relates to the detention of accompanied asylum seeking children from Iraq in Bulgaria. Trying to cross the Bulgarian-Serbian border, the accompanied children were detained by the Bulgarian Border Police. The applicants submitted an application to the ECtHR complaining that the detention of the accompanied children constituted inhuman and degrading treatment in breach of Article 3 ECHR.
 
Referring to Popov v. France and A.M. and Others v. France, the Court asked the parties whether the conditions of the children’s detention amounted to inhuman and degrading treatment. In addition, the Court asked whether the applicants had exhausted domestic remedies.

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Council of Europe


Parliamentary Assembly adopts a resolution on improving the protection of unaccompanied minors in Europe

On 13 October 2016, the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution, based on the report Harmonising the protection of unaccompanied minors in Europe.
 
The resolution focused on “the need to treat unaccompanied children first and foremost as children, not as migrants”. Unaccompanied migrant children should therefore be duly registered upon arrival in Europe, allocated accommodation and given access to healthcare and education. In addition, the resolution stressed that immigration detention should be avoided in any situation. Lastly, PACE urged states to uphold the right to family reunification, to harmonise its rules concerning the appointment of guardians and legal representatives and to introduce accelerated asylum application procedures, which would entail the prompt designation of trained guardians and legal representatives.

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National Developments


UK: Upper Tribunal publishes new Country Guidance case on Eritrea

On 10 October 2016, the Upper Tribunal published a new Country Guidance case on Eritrea, MST and Others (national service – risk categories). The judgment confirms that Eritreans, who evaded military service and/or left the country illegally, continue to face a real risk of persecution, serious harm or ill-treatment if returned to Eritrea. 
 
The Upper Tribunal finds that a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker:

  1. that he or she left illegally, and
  2. that he or she is of or approaching draft age

is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm. It is also possible, while rare, that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.
 
In response to the MST and Others judgment, the Home Office has removed their previous Country Information and Guidance on Eritrea in relation to national (including military) service and illegal exit from August 2016.

Original version currently not available online.

 

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ECRE


EDAL blog – Mirza and the application of the Safe Third Country concept under the Dublin Regulation: a foreboding of things to come?

Jean-Babtiste Farcy, PhD candidate at Université catholique de Louvain, and Amanda Taylor, EDAL Coordinator, have written a blog which assesses the application of the Safe Third Counry concept under the Dublin Regulation in light of the CJEU judgment in Mirza
 
Whilst being a highly circumscribed judgment the authors explore the pitfalls of the court’s reasoning, notably that the admissibility procedure can be done by any Member State outside of the Dublin procedure. The submission analyses the risks that such a conclusion poses to the right to family unity under the Regulation. The contribution ends with an analysis of the investigative duties on Member States when considering sending an applicant to another Member State and by doing so questions whether Mirza has backtracked on NS & ME as well as M.S.S. v. Greece and Belgium from the European Court of Human Rights.

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NGOs


Aitima publishes report on the administrative detention of irregular migrants and asylum seekers in Greece

The Greek NGO Aitima has published a report on the administrative detention of irregular migrants and asylum seekers in Greece. The report compiles findings of detention monitoring conducted by Aitima from September 2015 to September 2016.
 
Several of the detention facilities visited by Aitima are spaces falling below the CPT standards for detention of non-nationals. In addition, issues related to the maintenance of facilities, health care and provision of information are also reported. Alongside conditions of detention, the report documents problems in the assessment of legality of detention for removal purposes or during an asylum procedure. On the other hand, asylum seekers who wish to apply for asylum have faced delays in lodging applications with the Asylum Service.

Based on the AIDA article dated 10 October 2016, available here.  

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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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