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ELENA Weekly Legal Update (EWLU)

21 October 2016
 

Summary

European Court of Human Rights


Communicated cases: 

Asady and Others v. Slovakia (no. 24917/15), communicated on 26 September 2016

On 26 September 2016, the European Court of Human Rights communicated the case Asady and Others v. Slovakia (no. 24917/15), which relates to the collective expulsion of nineteen asylum seekers from Slovakia to Ukraine in November 2014.

The applicants submitted an application to the ECtHR complaining that their collective expulsion constituted a violation of Article 4 Protocol 4 ECHR because the authorities did not carry out an individual assessment and examination of their cases and also denied them access to the asylum procedure in Slovakia. In addition, the applicants argued that they had no effective remedy to challenge their expulsion in violation of Article 13 ECHR in conjunction with Article 4 Protocol 4 ECHR.

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European Union


CJEU: Case C-429/15 – Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General, 20 October 2016

On 20 October 2016, the Court of Justice of the European Union (CJEU) delivered its judgment in the case Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General, which relates to the interpretation of the principle of equivalence.

The case concerned a Ghanaian national, whose applications for international protection and humanitarian leave to remain were rejected. Her subsequent application for subsidiary protection was similarly rejected because this application had not been lodged within the period of 15 working days after the notification that her asylum claim had been rejected.

The Court of Appeal (Ireland) referred a request for preliminary ruling to the CJEU on “whether the principle of equivalence must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that the applicant whose asylum application has been rejected may make an application for subsidiary protection.”

Taking into consideration the particular human and material difficulties of the applicants for international protection, the CJEU held that a 15-day limit is particularly short and does not ensure that all those applicants are afforded a genuine opportunity to submit an application for subsidiary protection. For this reason, such a time limit cannot reasonably be justified for the purpose of ensuring the proper conduct of the procedure for examining an application for that status.

That conclusion, moreover, cannot be called into question by the need to ensure the effectiveness of return procedures, since the time limit at issue in the main proceedings is not directly linked to the return procedure, but to the rejection of the application for refugee status.

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CJEU: C-473/16 F – Request for a preliminary ruling from the Administrative and Labour Court Szeged (Hungary), 29 August 2016

The Administrative and Labour Court Szeged (Hungary) has referred a request for preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation to be given to Article 4 of the Qualification Directive. The case relates to a Nigerian national, who had submitted an application for international protection based on sexual orientation in Hungary.

The Administrative and Labour Court Szeged has referred two question to the CJEU:

  1. Should Article 4 of the Qualification Directive be interpreted in light of Article 1 of the Charter of Fundamental Rights of the European Union, as not precluding that, when LGBTI’s apply for international protection, advice by a psychologist, based on projective personality tests, is taken into account when assessing the application for asylum, even if the opinion was drawn up without any questions asked by the applicant about his sexual habits and without being subjected to a physical examination?
     
  2. If the expert opinion referred to in the first question cannot be used as evidence, should Article 4 of the Qualification Directive be interpreted that, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, when the applicant puts forward, in support of his application, that he is being persecuted because of his sexual orientation, neither the administrative authorities nor the courts have the ability to investigate the credibility of the asylum seeker on the basis of an expert's report, regardless of the specific characteristics of the methods used in this report?

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Council of Europe


GRETA publishes compendium of good practices on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings

The Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) has published a compendium of good practices on the implementation of the Council of European Convention on Action against Trafficking in Human Beings. The guidebook for national authorities includes, inter alia, good practices in relation to prevention, protection of victims’ rights, prosecution and partnerships. Examples of good practices have been gathered from countries of origin, countries of transit and countries of destination for victims of trafficking.

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United Nations


UNHCR publishes the conclusion of the Executive Committee on international cooperation from a protection and solutions perspective

UNHCR’s governing Executive Committee has published their conclusion on international cooperation from a protection and solutions perspective. The conclusion reaffirms its commitment to international solidarity and responsibility and recalls that international cooperation is important for States with internally displaced persons, stateless populations, asylum seekers and refugees.

UNHCR therefore calls upon States to increase their efforts to implement the principles of international cooperation, solidarity, equitable responsibility and burden sharing. Further recommendations address issues such as the voluntary character of refugee repatriation, sustainable reintegration of refugees following their voluntary return, and the strengthening of linkages among stakeholders.

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National Developments


Switzerland: undue protection restrictions for temporary admission beneficiaries

The Swiss Federal Council has published a report examining the application of the status of temporary admission and access of beneficiaries to rights and integration in practice. Temporary admission is a natural protection status in Switzerland, different from subsidiary protection provided in the EU asylum acquis.

At the end of the first half of 2016, Switzerland reported a total 34,741 persons benefitting from temporary admission and 43,300 refugees recognised under the 1951 Refugee Convention. Temporary admission has a more precarious design to refugee status, providing for lower rights of residence, labour market access, family reunification and travel. However, the precarious nature of temporary admission status does not seem to be justified in practice, as the Federal Council notes that the vast majority of beneficiaries stay for prolonged periods of time in Switzerland and thus face undue restrictions to accessing rights integration.

The Swiss Refugee Council, an ECRE member and the ELENA coordinator, also stresses that persons obtaining temporary admission have acute protection needs and stay in Switzerland for long periods of time in practice, thereby questioning the relevance of the “temporary” character of this protection status. In light of this, the Swiss Refugee Council calls for easier access to the labour market, family reunification and travel, to prevent temporary admission holders from undue discrimination compared to refugees. Strengthening access to rights such as family reunification for temporary admission beneficiaries is one of the recommendations presented by the Federal Council, among other policy options such as the creation of a new protection status for persons who do not qualify as refugees but may not be returned to their country of origin.

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).
 
       

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






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