ELENA Weekly Legal Update (EWLU)

28 June 2019


European Court of Human Rights

Al Husin v. Bosnia And Herzegovina (No. 2): Detention in violation of the Convention 

On 24 June, the European Court of Human Rights (ECtHR) published its ruling in the case of Al Husin v. Bosnia and Herzegovina (No. 2) regarding the pre-removal detention of a third-country national following the revocation of his citizenship. 

The applicant, a Syrian national, was a member of the El Mujahedin unit in Bosnia and Herzegovina during the war of 1992-95. In the immediate aftermath of the war, the applicant acted as the leader of a group of foreign mujahedin. For acts committed in this role, the applicant was convicted and given a suspended prison sentence. In 2007, his citizenship of Bosnia and Herzegovina was revoked and, in October 2008, the applicant was placed in detention on the grounds that he was a threat to national security. In 2011, following the dismissal of his asylum claim the Aliens Service issued a removal order in respect of the applicant.

The applicant previously applied to the ECtHR (application no. 3727/08), which held that his removal to Syria would risk treatment contrary to Article 3 and his detention between 6 October 2008 and 31 January 2011 amounted to a breach of Article 5 § 1. Following this case, in March 2012, the applicant was issued a new deportation order that stated that in the event the applicant failed to leave voluntarily, an additional removal order would be issued indicating a destination country for his removal. From February 2012 to February 2016, the applicant remained detained on national security grounds. He continually challenged this detention. More than fifty countries were contacted to request they take the applicant, thirty-nine refused and the remainder did not respond. The applicant was released on 17 February 2016, after eight years of continuous detention, and preventive measures were imposed pending his removal.

On the complaint under Article 5 § 1 (f), the ECtHR recalled that any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified only for as long as deportation or extradition proceedings are in progress. Furthermore, the Court, with reference to its own case law, recalled that for detention to not be considered arbitrary it must be carried out in good faith, be closely connected to the ground of detention, the place and conditions of detention should be appropriate, and the length of the detention should not exceed that reasonably required for the purpose pursued. The Court recalled that Article 3 prevented the applicant’s removal to Syria and that by August 2014, thirty-eight countries had been contacted as places of removal for the applicant. The Court thus held that the grounds for the applicant’s detention did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion.

With regard to a violation under Article 5 § 4, regarding the right to an effective remedy, the Court referenced its own case law and recalled that an applicant’s right under Article 5 § 4 to procedural fairness has to be balanced against matters of strong public interest. The Court held that during the appeals proceedings, the applicant was given access to the evidence against him and could therefore effectively challenge its reasonableness. The Court thus found there had been no violation of Article 5 § 4.

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United Nations

Committee on the Rights of the Child: Spain’s age assessments for unaccompanied minors in violation of the Convention 

On 31 May 2019, the United Nations Committee on the Rights of the Child (the UNCRC) decided in two separate cases on age assessments conducted on unaccompanied children, A.L. (CRC/C/81/D/16/2017) and J.A.B. (CRC/C/81/D/22/2017), in Spain.

A.L., an Algerian national, arrived to Almería, Spain by boat in 2017. When detained by police, the applicant stated he was a minor. Two days later he was transferred to a hospital where an age assessment was conducted using the Greulich-Pyle Atlas method. It found the applicant was “older than 19”. A.L. was subsequently detained in the Detention Centre for Foreigners (CIE) of Aluche, Madrid, pending his return to Algeria. In the CIE, he alleges that he was beaten by guards. The NGO Fundación Raíces, who supported the applicant, received faxed copies of his identity documents from his family in Algeria and submitted them to the Court of Instruction of Almería. To the date of the present ruling, the applicant had not received a response from this Court.

The second case concerns J.A.B., a Cameroonian national, who arrived to Ceuta on 23 April 2016. Upon arrival, he alleges that the Red Cross told him to not state he was a minor as it would mean he would have to remain in Ceuta. The applicant resided in the Migrant Temporary Stay Centre (CETI) for five months with adults and on the mainland he resided in various centres among adults, as well as on the street. In October, he received his official birth certificate from Cameroon and consular identity documents from the Cameroonian Embassy, and later, he received his passport. The applicant presented his official documentation to authorities to show he was a minor, but was denied representation by a guardian or lawyer. The Prosecutor refused to recognise the validity of the documents and requested he undergo an age assessment. As he had official and original documentation issued by the authorities of Cameroon, the applicant declined. The Prosecutor refused to recognise the documents and the applicant was removed from the Centre for Minors. The applicant was subsequently made destitute and received a removal order.

The Committee recalled that the determination of the age of a young person claiming to be a minor is of fundamental importance, since the outcome determines whether that person will be entitled to protection as a child and the rights that flow from this, or will be excluded from such protection. With reference to General Comment No. 6, the Committee held that both physical appearance and psychological maturity have to be taken into account and that the assessment must be based on scientific criteria with consideration of the best interests of the child. In cases of uncertainty, the individual should be given the benefit of the doubt, so that, in the case of a child, they are treated as such. With regard to legal representation, the Committee held that the appointment of a legal guardian or a representative is an essential guarantee during the age assessment process. The denial of access to legal representation constitutes a violation of the right to be heard. In light of the above, the Committee found a violation of both applicants’ rights under Articles 3 and 12 of the Convention on the Rights of the Child.

The Committee held that a child's age and date of birth are part of their identity and that states have an obligation to respect the child's right to preserve their identity without depriving the child of any of its elements. Consequently, the Committee concluded that Spain violated Article 8 in respect of both applicants.

In respect of J.A.B., the Committee held that Spain had failed to protect him against his situation of helplessness, particularly given his high degree of vulnerability as a minor who is a migrant, unaccompanied and ill. The Committee noted that this lack of protection occurred even after the author submitted identity documents to the Spanish authorities confirming that he was a child. The Committee considered that this constituted a violation of Articles 20 (1) and 24.

The Committee, recalling that Spain was signatory to the Optional Protocol, held that their failure to abide by interim measures also constituted a violation of Article 6 of the Optional Protocol in both cases.  It ruled that Spain now has an obligation to avoid similar violations through ensuring age assessments are conducted in conformity with the Convention, that the procedures take into account the documentation presented and that legal representation is allocated.

Based on an unofficial translation by the EWLU team.

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UNHCR Comments on EASO Country Guidance: Nigeria

The United Nations High Commissioner for Refugees (the UNHCR) has published its Comments on the publication “Country Guidance: Nigeria Guidance Note and Common Analysis” issued by the European Asylum Support Office (EASO) in February 2019.

UNHCR expresses concern that EASO’s Country Guidance does not provide explicit guidance for claims for international protection by women and girls who are at risk of gender-specific forms of persecution in Nigeria. In particular, UNHCR states that EASO should provide guidance regarding women who may have not been victims of trafficking in the past, but may be trafficked upon return to Nigeria, as well as women from Boko-Haram areas who face gender-specific persecution. 

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European Union

EASO: Publication of Annual Report for 2018 

The European Asylum Support Office (EASO) has published its Annual Report for 2018. The report seeks to provide an overview of the situation of asylum in the EU+ region, examining developments and trends at EU and national levels and the functioning of the Common European Asylum System (CEAS).

The report details developments including, inter alia, progress on five out of the seven proposals for a reformed asylum system, as well as CJEU asylum-related case law. The report also examines the situation in hotspots, noting improvements on the Eastern Aegean islands, but stating that overcrowding and limited access to basic services remain an issue, and that while there has been a reduction of arrivals by sea, there has been a simultaneous increase in land arrivals. The EU-Turkey Statement and temporary arrangements for disembarkation are also addressed. 

The majority of applications for international protection were lodged in Germany, France, Greece, Italy and Spain, accounting for almost 75% of all applications lodged in the EU+. Germany and Italy continued to have the highest number of pending cases, despite reductions on previous years, and Spain and Greece saw notable increases in pending cases. Approximately 39% of applicants were granted international protection status, however, recognition rates across the EU continue to vary significantly. With regard to Dublin III transfer requests, the overall acceptance rate for decisions on Dublin requests in 2018 was 67%, down 8% on previous years.

The final section of the report examines the functioning of the CEAS, including, inter alia, access to asylum procedures, access to information, legal assistance and representation, and interpretation, as well as fast-track border procedures and inadmissibility procedures across the EU+. Updates with regard to reception conditions, detention, and second instance proceedings are also addressed. 

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National Developments

Denmark: Refugee Appeals Board finds returns to Syria would violate fundamental rights in six trial cases

The Refugee Appeals Board in Denmark overturned decisions issued by the Danish Immigration Service to withdraw or to refuse to extend the residence permits in six cases of Syrian nationals from the province of Damascus.

In 2015, following amendments to the Aliens Act, asylum applicants from affected areas in Syria who had fled a general situation of violence and had not risked individual persecution were granted general temporary protection status under Article 7 (3) of the Aliens Act. On 27 February 2019, the Refugee Board Coordination Committee stated that the conflict and the civilian casualties in Syria were geographically limited and held that it was up to the Immigration Service to assess whether there remain grounds for granting protection.

In assessing the six cases, the Refugee Appeals Board examined the current situation in Syria. It held that the security situation remains volatile and human rights abuses continue to occur, including in Damascus. The Board recognised that individuals with certain ‘risk profiles’ would likely be persecuted in Syria, including those who have evaded military service and their family members, those associated or perceived to be associated with opposition groups, persons from areas previously controlled by the opposition, as well as individuals whose names may be confused with wanted persons. The Board noted that the Syrian authorities’ assessments of which citizens constitute a security threat are characterised by arbitrariness and unpredictability. Recognising reports, which indicate serious abuses are committed by Syrian authorities of persons who are interrogated and imprisoned, the Court held that such treatment would be a violation of rights under Article 3 of the European Convention on Human Rights (ECHR).

In all six cases, the Refugee Appeals Board overturned the decisions of the Immigration Service and granted residence permits to all applicants under Article 7 (1) or (2) of the Aliens Act. 

The EWLU team would like to thank Sebastian Juel Frandsen and Lene Moelgaard Kristensen, ELENA Coordinator for Denmark, for their information on these cases. 

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Germany: Transfer to France suspended due to situation for Dublin returnees 

On 25 April, the Administrative Court of Arnsberg ruled to suspend the transfer of an asylum applicant and her daughter to France under the Dublin III Regulation 604/2013 (the Dublin Regulation) as it would violate their rights under Article 3 of the European Convention of Human Rights (ECHR).

The Court stated that deportation to poor humanitarian conditions can only be determined to be inhuman or degrading treatment in very exceptional individual cases and if the requirements of the threshold of severity of Article 3 are met. It held that this threshold is met in situations in which third-country nationals cannot secure a livelihood, find shelter or access basic medical care.

The applicant in the instant case was previously transferred to France from Germany in 2018 along with her daughter. She alleged that upon arrival in France they had lived on the street, and that when they tried to register with the refugee shelter at the airport, she was informed that she must remain destitute for 45 days before they could register their asylum claim and access to the shelter would only be granted after 3 months. As a result, the applicant and her daughter slept in the airport and on the street. During this time, the applicant was raped. She stated that if she did not have to care for her daughter, she would have committed suicide. The applicant contacted her uncle in Germany, and traveled there again.

With reference to the AIDA Country Report: France, 2018 Update, the Court recognised the complicated situation for Dublin returnees in accessing the asylum procedure. It described the complex pre-registration procedures with Plateformes d'accueil des demandeurs d'asile (PADA) in local prefectures, following which they must register in 1 of the 34 Guichets uniques de demande d'asile (GUDA), as well as the issues with the telephone reporting system implemented in the Ile de France region. With regard to access to accommodation centres, the Court noted difficulties of access and the limited number of places. 

In light of the above, the Court held that Dublin returnees in France must use a high degree of personal initiative in order to find accommodation and to gain access to care. Given the experiences of the applicant when she was previously in France and her current psychological state, the Court found that a return to France would risk violating her right to not be exposed to inhuman or degrading treatment under Article 3 of the ECHR. The Court thus ordered the suspension of the Dublin transfer.

Based on an unofficial translation by the EWLU team.

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USDOS publishes annual reports on religious freedom and on human trafficking for 2018

The US Department of State has published its annual reports on religious freedom and trafficking in persons. The country chapters include the latest developments in each area and cover the period from April 2018 to March 2019.

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Legal Assistant Vacancies

ECRE is offering two 6-month legal internships: August 2019 – January 2020. The purpose of these positions is to assist ECRE’s Legal Support and Litigation Team with legal training, legal research on specific topics relating to international protection, managing the ELENA Weekly Legal Update and administrative tasks related to the ELENA network.

Candidates should send a copy of their curriculum vitae (2 pages maximum) and an application form to Julia Zelvenska ( by 17 pm CET on 1 July 2019 stating “Application Legal Assistant” in the subject heading.

Please find more information 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 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 Julia Zelvenska (

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