ELENA Weekly Legal Update - 13 February 2015
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13 February 2015


Council of Europe

Council of Europe

European Court of Human Rights: S.C. v. Romania (no. 9356/11) [Article 5 para 1(f) and para 4], 12 February 2015 

The case concerns a Turkish national whose asylum application in Romania was rejected on account of a lack of credibility. His application was viewed as being contradictory, notably with regards to a criminal conviction in Turkey for activities linked with a terrorist organisation. In subsequent proceedings the Romanian Intelligence Services, relying on confidential documents, sought a declaration from the Bucharest Court of Appeal that the individual posed a threat to national security. Notwithstanding that the applicant had neither access to the documents, nor to a defence submission or to notification in Turkish of the hearing date, the Appeal Court found the applicant to be a threat, banning his entry to Romania for a period of fifteen years, ordering his removal and placement in a holding centre for foreigners up until the execution of the decision. This judgment was later confirmed by the High Court.   

Finding that a domestic legal basis had been provided by the Court of Appeal for the applicant’s detention, the Court later held that the duration of the asylum procedure from 2009-2011 had not been excessive given the complexity of the case [62-63]. However, given that the applicant was detained for a further three months after the rejection of his asylum application, without an explanation being furnished by the authorities as to the grounds of detention or active steps taken by the authorities to proceed with his removal, the Court found that the applicant’s rights under Article 5 para 1(f) ECHR had been violated [64-66].  

With regards to Article 5 para 4 the Court declined to accede to the applicant’s submissions that he had not had the possibility to contest the lawfulness of his detention given that the Court of Appeal had provided clear reasons for its determination and the applicant had had the opportunity to appeal the legality of the measure in front of the High Court [76]. Moreover, the Court noted that the applicant had not taken any interest in the notification of the Appeal Court’s hearing, contacting a lawyer only after being placed in the holding centre. The Court thus surmises that the applicant’s lack of diligence had contributed to him missing the Court of Appeal’s hearing[75]. According to the Court these conclusions amount to a finding that Article 5 para 4 had not been violated [77].

Based on an unofficial ELENA translation.

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European Court of Human Rights: N.M. v. Romania (no. 75325/11) [Article 3, 5 para 1(f) and para 4], 12 February 2015 

The second case to consider the legality of detention of an asylum seeker in Romania concerns an Afghan national whose claim for asylum was rejected by the Romanian Immigration Office and later by the Bucharest Tribunal on grounds of a lack of credibility and evidence that he risked ill-treatment at the hands of the Taliban if sent back to Afghanistan. In similar circumstances to the first case above, the applicant was declared an “undesirable person” for a period of 15 years by the Court of Appeal on account of documentation which evidenced that the applicant had been involved in activities likely to threaten national security. The applicant was placed in a holding centre pending removal following an order by the Court, where he later lodged an appeal against the Court of Appeal’s decision in front of the High Court. This was subsequently refused by the latter on account that he had not respected the procedural time limits for presenting his appeal.

Concerning the submission relating to inhumane treatment in light of the isolated living conditions in the holding centre (Article 3 ECHR) the Court noted that the applicant had been in contact with his lawyer and an interpreter, had permanent access to his mobile phone and had not complained that the length of isolated detention had led to a degradation of his physical or mental health (Ramirez Sanchez v. France) [62]. According to the Court, therefore, the threshold for an Article 3 violation had not been met [63].

However with regards to Article 5 para 4 the ECtHR found that even though the applicant lacked diligence by not attending the hearing before the Court of Appeal nor the High Court, the latter’s rejection of the appeal against the former’s decision on the grounds that it was too late displayed excessive strictness [83]. The Court thus concluded that there had been a violation of the right of the applicant to an effective remedy to challenge the lawfulness of his detention [86].

Lastly, with regards to Article 5 para 1 (f) the Court noted that whilst the Article does not specify a maximum time limit for detention, it can only be justified where an expulsion procedure is underway [91]. Notwithstanding that the applicant complained of a lack of definite time period for detention, which in fact lasted for more than a year, the Court surmised that the applicant’s time spent in detention had not gone over that prescribed by law (18 months) [94]. Moreover, in light of the asylum procedure which required a meticulous examination and the possibility for the applicant to submit evidence and argumentation during this time, the Court found that the applicant’s time in detention was not excessive. In fact the Court uses the relatively short time limit between the notification of the rejected asylum decision and the applicant’s subsequent removal to evidence that the sole objective of keeping the applicant in detention was to ensure his removal [96-97]. The Court, subsequently, declines to find a violation of Article 5 para 1 (f) [98].

Based on an unofficial ELENA translation.

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Committee for the Prevention of Torture (CPT) report on Joint Return Operation between FRONTEX and the Netherlands

The CPT has issued a report on the first monitoring mission of a Joint Return Operation (JRO) of a return flight co-ordinated by FRONTEX and organised by the Dutch authorities with the involvement of the Bulgarian, German, Slovenian and Spanish authorities.

In the report, the CPT highlights that the removal of foreign nationals by air is becoming a widespread practice across Europe. In the view of the Committee, these operations “entail a manifest risk of inhuman and degrading treatment (during preparation for the removal, the actual flight or when the removal is aborted).” Therefore, the CPT recommends that the non-refoulement principle “be kept in mind” by state authorities during such operations. The CPT recommends that during the negotiation of a new readmission agreement “an explicit reference should be made to the possibility for national or international monitoring bodies (such as the CPT) to observe removal operations to the country of destination,” and that similar monitoring activities should be carried out for similar agreements already in force.

The committee stated that, during the preparation for removal, “access to legal advice and avenues of legal recourse” should be available to the migrants until the moment of departure. Furthermore, the Committee added that until the person is transferred to another’s state jurisdiction a legal representative is entitled to use any national or international legal recourse to stop the removal. Thus the report noted that, after landing and before disembarkation, the authorities carrying out the removal operation should seek a last contact with their respective headquarters to check if during the flight a national or international court (including the ECtHR) has issued a last judicial decision that would halt the operation. The CPT recommended that this “last call” procedure be put in place by the authorities of the Netherlands during removal operations.

During the monitoring mission, the CPT delegation was informed that in exceptional cases removal operations could be carried out without informing the person concerned of the time of the removal. This according to the CPT increases the risk of a person violently refusing removal.

At some stages of the procedures, the CPT noted that the level of physical control and the means of restraint were excessive considering the long period of time during which such means were used on the deportees. The CPT recommended that the use of physical control and restraint techniques should be justified by an individual risk assessment. The Committee also encouraged FRONTEX State Parties to undertake more in-depth discussions to promote more precise common rules on the use of means of restraint. 

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European Union

AG Opinion in Case C‑554/13 Z. Zh. and O

(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 7(4) — Decision refusing to grant a period for voluntary departure — Risk to public policy)

Facts of the case

Mr. Zh and Mr. O are third country nationals who were both ordered to leave the Netherlands with immediate effect on grounds that they constituted a risk to public policy and were not entitled to a period allowing them to depart voluntarily from the Netherlands. Mr. Zh, transiting through the Netherlands, had been convicted of travelling with a false travel document and Mr, O, staying in the Netherlands after the expiration of his short stay visa, was arrested and detained on suspicion of domestic abuse. Seeking guidance from the CJEU as to the meaning of Article 7(4) of the Returns Directive, the Raad van Stat referred questions relating, in particular, to the definition of the words ‘poses a risk to public policy’.

Consideration of the questions referred

With the first question the Advocate General undertakes a teleological interpretative approach in analysing the meaning of “risk to public policy” advancing that in line with EU legislation and case-law “public policy” is to be assimilated with the French version of the Directive’s text, “ordre public” and that “poses a risk” should be understood as meaning “constitutes a danger or threat” [32-43]. Thus, and in line with Recital 6 of the Directive, the AG submits that “there must be a real and sufficient danger to [public order] for the Member State to have recourse to the derogation. In other words, it is not sufficient for the person concerned to have acted against [public order]” [44].

Underlying that the derogation of public order must be interpreted strictly, the AG submits that Article 7(4) cannot be determined unilaterally by each Member State, but must be subject to the control of EU institutions [46]. In this manner the onus is “on the Member State relying upon the derogation to show why there is a threat to [public order] in any particular case and to put forward grounds justifying recourse to the derogation in Article 7(4)” [47]. Moreover, the AG looks into whether any useful purpose is served by comparing by analogy Article 7 (4) with other Directives, notably the Citizenship Directive, the Long-Term Residence Directive and the Family Reunification Directive, which also contain public order exceptions. Vehemently disagreeing with such an approach the AG advances that to compare thresholds of when public order may be triggered would be to create a hierarchy of protection, “implying that those at the bottom fall more readily within the scope of a provision derogating from rights afforded to them under EU law simply because they are of a lower status in the hierarchy” [58]. This would go against the provisions of the Charter which are to apply with equal rigour to third country nationals as well as EU citizens [59].

Underlying that an individual assessment must be undertaken when examining whether a third-country national constitutes a risk to public order, the AG goes on to note, with specific reference to Mr. Zh, that “it does not necessarily follow that any breach of the criminal law, however minor, constitutes a (future) threat to [public order] within the meaning of Article 7(4).” Submitting that a number of third country nationals in flight present false papers at the EU border the AG highlights that there should be no automatic decision to deprive a national of voluntary departure on account of travelling with false papers [62]. This, according to the Advocate, also applies where the individual is suspected of committing a criminal offence [69]. However, the AG does note that “a conviction does not have to become final and absolute with no further appeal in order to bring the person concerned within the scope of Article 7(4) of the Returns Directive” [64] and, “in principle, suspicion of having committed a criminal offence could be enough to invoke the Article 7(4) derogation”[68].

As to the second question the AG advises the Court to conclude that other factors, such as the severity of the penalty imposed; and the degree of involvement of the person concerned in committing that offence; as well as the person’s intention to re-offend should be taken into account when assessing whether Article 7(4) derogations apply [74]. However, the assessment must be undertaken on a case by case basis. Moreover, the weight to be attached to these factors are relative and should be weighed against “the degree of the disturbance and the nature of the threat to the [public order]”, something which is appreciably less apparent in the case of Mr. Zh [76]. Interestingly, and despite noting that the proceedings are not ones of infringement, the AG highlights that the Dutch practice of refusing to grant a period for voluntary departure because the person concerned had a criminal conviction or was suspected of having committed a crime, was incompatible with the Returns Directive. This is because the wording of the Directive requires a case by case assessment and that there exists no presumption against voluntary departure where the person concerned is convicted or is suspected of having committed a criminal offence within the Directive [79].

Lastly, the AG submits that an interpretation of Article 7(4) allowing a Member State automatically to affect immediate expulsion if the public order derogation applies is incompatible with the Returns Directive [87]. To decide the contrary would breach the EU principle of proportionality, which in the context of the Returns Directive “requires that when restricting the right to voluntary departure the least restrictive measure should be taken according to the circumstances of the case” [91]. Thus, the AG concludes that when determining whether to grant a reduced period for voluntary departure under Article 7(4) it would be incompatible with the Directive to automatically not grant a period of voluntary departure in every case, “even if a period of between one and six days for voluntary departure might be appropriate in the circumstances of an individual case” [94].

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National Developments

Belgium: Brussels Labour Tribunal rules on social benefits for family who cannot be returned due to medical grounds

The facts of the case relate to a Guinean national and her minor son who, following on from a negative asylum decision by the Council of Aliens Law Litigation (CALL), were given orders to leave the territory. On account of a recurring medical illness the child was placed in social care under the supervision of the judicial services. During this period the mother had been staying with friends and later squatting in a dis-used building where she later applied for urgent social aid from a Public Centre for Social Welfare (CPAS). Contesting the urgency of the application the CPAS found no reason to derogate from its usual procedure of handling requests within a month.

In response, the Labour Tribunal found that in light of a lack of heating, electricity and water in the building as well as possible lengthy appeals against a negative CPAS decision (probable on account of the applicant’s refused asylum application) the Tribunal found that the urgency requirement codified in domestic law had been established.

As to the claim of social benefits the Tribunal submitted that where a removal order cannot be undertaken on account of administrative or medical grounds, the CPAS should not limit benefits to urgent medical care even if the applicant is residing on the territory without the requisite authorisation. As the applicant’s son was under the care of social services, she was unable to leave the territory without her rights under Article 8 of the ECHR being violated. Thus, the Tribunal concludes that the CPAS must provide the applicant with an integration income at a fixed rate

The ELENA Weekly Legal Update would like to thank Selma Benkhelifa and Rosalie Daneels for providing us with this information.

Based on an unofficial ELENA translation.

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The Netherlands: Dutch Council of State confirms forced removals to Somalia since end of 2014

The facts of the case relate to an asylum applicant’s detention prior to his removal to Somalia. Appealing against a District Court’s decision which found that the prospects of executing removal directions to Somalia within a reasonable period had become too unlikely, the Secretary of State submitted that the Court had failed to take into account an oral commitment since October 2014 between the Dutch and Somalian authorities co-operating on the forced deportation of a limited number of Somali nationals pending the negotiations on a new Memorandum of Understanding. The removals of several Somalis were based on this commitment and thus, according to the Secretary of State, constituted an adequate change in circumstances, necessary to reinstate detention.

In response, the Dutch Council of State noted, indeed, that to renew detention before the detainee has been released from the custody of the authorities, there must be proof of changed circumstances. Thus, according to the Council of State, the District Court, should have examined any changed circumstances since 7 October 2014 and thus investigated whether the agreement between the Somalian and Dutch authorities constituted said change in circumstances. In light of the Secretary of State’s oral agreement with Somalia to cooperate on the forced deportation of the individual concerned along with previous successful removals to Somalia of other individuals at the end of 2014, the Council advanced that the Secretary of State had reason to believe that the removal directions would be carried out within a short period of time. Thus the applicant’s detention was found to be lawful.

The Council therefore held the appeal of the Secretary of State to be well founded, quashing the District Court’s judgment as well as the applicant’s appeal against the detention.

The ELENA Weekly Legal Update would like to thank David Watt for providing us with a translation of this case as well as Mariette Timmer and Sadhia Rafi for their comments. 

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Norway: Court of Appeal criticises credibility assessment by Directorate of Immigration 

The case relates to a review of the Norwegian Directorate of Immigration’s evidentiary assessments in two asylum applications relating to Rwandan ethnic Hutus who feared persecution on account of a relative’s murder and their subsequent open investigation into said murder. The Directorate’s decision concluded that the applicants had not sufficiently substantiated their application on account of internal discrepancies, incoherencies and ambiguities within their statements. Further advancing that the applicants did not face a risk of persecution given that the case had occurred many years ago, the Directorate also surmised that there was no proof that it was an ethnically motivated murder.

Proceeding with a thorough analysis of evidentiary requirements and credibility assessments in asylum applications, the Court of Appeal submitted that where an applicant’s account appears credible the applicant should, unless there are good reasons to the contrary, be given the benefit of doubt. Moreover, whilst there may be some contradictions within an applicant’s statement, the individual’s credibility should not falter if satisfactory explanations are given as to the inconsistencies. In this particular case the Court notes that translation difficulties, linguistic nuances as well as legitimate police summons and documents attesting to the applicant’s relationship with the deceased rendered the Directorate’s assessment of a lack of credibility incorrect.

Moving onto the fear of persecution the Court of Appeal rejected the “discretion” argument whereby the applicants could avoid persecution if they were to discontinue with the investigation and instead noted that it was understandable that loved ones would want to get to the bottom of a relative’s death. Referring to witness reports, country of information guidance and credible evidence that the applicant’s had been arrested several times in conjunction with their involvement with the case, the Court of Appeal concludes that this in itself constitutes persecution. The Court further surmises that there is a link between these arrests and the applicants ethnicity and therefore decides to quash the Directorate’s decision, allowing the applicants’ appeals. 

N.B. The decision is final, and can no longer be appealed to the Supreme Court.
The ELENA Legal Update would like to thank Halvor Frihagen for informing us of this case.

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Promoting the EU Charter of Fundamental Rights within the legal networks active in the field of asylum and migration in Europe (FRAME) Booklet, French Chapters now available

A French translation of selected chapters (1-6) in ECRE’s and the Dutch Council for Refugees booklet on the application of the Charter of Fundamental Rights of the EU to asylum procedural law are now available online.

The booklet seeks to provide an overview of secondary legislation relevant in the context of the asylum procedure which is then assessed in light of the Charter and other relevant fundamental rights and principles as well as the case law of both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR).

The French translation of the Booklet comprises of two introductory sections that set out the content, scope and legal effects of the Charter and other relevant fundamental rights and principles. It then goes on to explain the role of the CJEU and national courts in the application and interpretation of EU law. Following from this there are four sections covering the following issues: access to the territory and to the asylum procedure; the right to remain on the territory; Legal assistance, representation and legal aid; and the right to a personal interview.

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EDAL new blog:  The Court of Justice of the European Union and its interaction with international law in the Qualification Directive: a calculated selectivity? 

In the latest of EDAL’s blogs an analysis of the CJEU’s interaction with international refugee and human rights law in the context of the Qualification Directive is undertaken.
Argumentation is put forward by Amanda Taylor suggesting that the Court is sheathing the interpretation and application of crucial concepts in the Qualification Directive from international norm influences. This consequentially risks circumscribing key refugee terms, stultifying their development and, thus, poses problems in terms of consistency within the asylum and refugee legal framework. In this manner particular attention is paid to the Court’s preliminary references concerning the definitions of persecution, subsidiary protection and exclusion. 

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Review of Mental Health Issues in Immigration Removal Centres 

The Tavistock Institute has published a review of how the UK Home Office policy deals with mental health issues in immigration detention, how that policy is put into practice and recommendations to ensure the well-being of detainees.

The report notes that the current provision of training on mental health awareness and appropriate treatment is very limited in Immigration Removal Centres, leading to a lack of necessary skills by which to identify mental health issues. In this regard the publication recommends that more attention needs to be paid to the person’s previous mental health conditions and policies and procedures need to be better aligned to the identification and management of mental health issues.

Furthermore the report notes that the ‘culture of disbelief’ is pervasive in removal centres and affects how staff assess health complaints and especially self-harm. The report submits that there is a need to improve the screening for mental health problems at reception with the presence of an interpreter. In order to improve caseworkers understanding of mental health issues and their impact on people in detention, the report recommends that a review is conducted into the structures and working relationships between internal departments within removal centres as well as with Home Office departments, organisations, companies and agencies and between the removal centres themselves which have different ethos, arrangements and treatment approaches to mental health problems.

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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 Amanda Taylor (ataylor@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

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