ELENA Weekly Legal Update (EWLU)

5 April 2019

The ELENA Weekly Legal Update will take a break and be back with more updates on 19 April!


European Court of Human Rights

European Court of Human Rights

Communicated cases against Greece and Sweden

The European Court of Human Rights has recently communicated two asylum-related cases:

  • Henry OBINNA IBE against Sweden (application no. 50586/18): The case concerns the deportation of a Nigerian man after the rejection of his asylum application in Sweden. The applicant suffers from chronic kidney failure and is in need of dialysis. He claims that he would be exposed to Article 3 risk upon return to Nigeria, as he would not be able to afford access to adequate medical care there.
  • AL H. and others & F.J. and others against Greece (application nos. 4892/18 et 4920/18): The case concerns the situation of vulnerable applicants from Syria, Iraq, Afghanistan, Sudan, Egypt, Eritrea and Ghana, who were restricted to the island of Lesvos by virtue of the EU-Turkey statement. The applicants complain that the living conditions in the hotspot of Moria, as well as the detention of some of them in a “cage” for six days, violated Article 3 ECHR and that they lacked access to an effective remedy under Article 13 ECHR in this respect. Moreover, several applicants claim that the failure of the authorities to comply with legal deadlines for the registration of their asylum applications affected their reunification with family members in other European countries and, as a result, their right to respect for family life under Article 8 ECHR.

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Court elects new President, Vice-President and Section President

On 1 April, the European Court of Human Rights elected Judge Linos-Alexandre Sicilianos to succeed Guido Raimondi, as its new President. The Greek Judge will take office on 5 May 2019.

Judge Robert Spano (Iceland) has been elected as a new Vice-President of the Court and Ksenija Turković was elected as a new Section President. They will both take up their duties on 5 May 2019.

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European Union

CJEU: Judgment in joined cases C-582/17 & 583/17, H. and R.

On 2 April 2019, the Court of Justice of the EU delivered its judgment in joined cases C-582/17 & 583/17, H. and R on the effective remedy in ‘take back’ procedures under the Dublin III Regulation (DR III).

The joined cases concerned two Syrian nationals who applied for asylum in the Netherlands but it was discovered that both individuals had a Eurodac ‘hit’ in Germany. Both applicants claimed to be married to third-country nationals who had been granted international protection in The Netherlands. Nevertheless, the Dutch authorities found that these marriages were not genuine and denied annulling their transfer to Germany. After both cases were brought before the Dutch Council of State, the latter decided to refer a question to the CJEU on whether a third-country national is entitled to rely, in an action brought under Article 27(1) of the Regulation in the second Member State against a decision to transfer him, on the criterion for determining responsibility set out in Article 9 thereof.

The Court first held that, in situations such as those at issue, the competent authorities of the second MS are not required to determine the MS responsible for examining the application by taking into consideration the criteria under Chapter III of the Regulation and before they make a take back request. It came to this conclusion because, under Articles 23(1) and 24(1) of DR III, the exercise of a take back request presupposes not the responsibility of the requested MS to examine the application for international protection, but that that MS satisfies the conditions laid down in Article 20(5) or Article 18(1) (b) to (d) of the Regulation. It further noted that the criteria for determining responsibility set out in Articles 8 to 10 of the Regulation, read in the light of recitals 13 and 14, intend to promote the best interests of the child and the family life of the persons concerned.

In light of the above, and in accordance with the principle of sincere cooperation, it found that in a situation covered by Article 20(5) of the Regulation, a MS cannot issue a ‘take back’ request when the applicant has provided the competent authority with information clearly establishing that that MS must be regarded as responsible for the application. In this case, and by way of exception, the CJEU concluded that the applicant could invoke the Article 9 criterion for determining responsibility in the action mentioned.

By clearly differentiating the purpose and process of the take charge and the take back procedures under DRIII, the CJEU found that a third-country national who lodged an application for international protection in a first MS, then left that MS and subsequently lodged a new application for international protection in a second MS is not, in principle, entitled to rely, in an action brought under Article 27(1) of DRIII in that second MS against a decision to transfer them, on the criterion for determining responsibility set out in Article 9. To conclude otherwise would not be in conformity with the Regulation’s overall objective to prevent secondary movements of persons and the principle that an application for international protection must be examined by a single MS under Article 3(1), as well as with the aim of rapid processing of applications.

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CJEU: Request for a preliminary ruling in case C-806/18

On 20 December, the Hoge Raad der Nederlanden (Netherlands) submitted a request for a preliminary ruling on the following question:

Is the criminalisation under national law which criminalises the stay of a third-country national in the territory of the Netherlands after an entry ban has been imposed on him pursuant to Article 66a(7) of the Vreemdelingenwet 2000 compatible with EU law, in particular with the finding of the Court of Justice of the European Union in the judgment of 26 July 2017, Ouhrami v Netherlands (C-225/16, EU:C:2017:590, paragraph 49) according to which the entry ban provided for in Article 11 of the Return Directive 1 produces its ‘effects’ only from the point in time the foreign national has returned to his country of origin or to another third country, when national law also holds that that foreign national has no lawful residence and moreover it is established that the steps of the return procedure set out in the Return Directive have been followed but the actual return has not taken place?

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CJEU publishes judicial statistics for 2018

On 25 March, the Court of Justice of the European Union published its judicial statistics for 2018, showing increased productivity compared to 2016 and 2017, with a total of 1,769 completed cases over the past year.

According to the statistics, new cases also increased by almost 15% with more references for a preliminary ruling, more appeals against decisions of the General Court, as well as more direct actions. The average duration of the proceedings decreased for appeals and direct actions but showed a slight increase for preliminary rulings.

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Commission issues report on the implementation of the Family Reunification Directive

On 2 April, the European Commission issued its report on the implementation of Directive 2003/86/EC on the right to family reunification.

The report documents similarities and differences in the implementation of the Directive’s provisions among the Member States. It also notes complaints reported on several aspects of the Directive’s implementation including, inter alia, the refusal to issue visas or permits, evidentiary assessment, duration and cost of proceedings, income requirements and incorrectly applied waiting periods. With regard to integration and income requirements the Commission takes note of the differences between the Member States and points to the relevant CJEU jurisprudence. Similarly, the discrepancies in the possibility for family reunification for beneficiaries of subsidiary protection are documented in detail, with specific reference to the practices of Austria, Germany, Latvia and the Czech Republic.

In respect of possible restrictions on grounds of public order, public security and public health, the Commission reports that there is divergence in the states’ use of the term “national security” with some of them referring to the Schengen acquis and others focusing on criminal offences. The Commission notes that Recital 14 of the Directive can be indicative of what may constitute a threat to public security, while generally the principle of proportionality should always be taken into account. In terms of public health, it is reminded that illness or disability cannot be the sole ground for withdrawal or non-renewal of a residence permit. All three notions must be interpreted in the light of the case law of the CJEU and the European Court of Human Rights.

Lastly, on family reunification of refugees the Commission observed the issue of lack of documentation and evidentiary considerations under Article 11 (2). In this respect, it noted that the implementation of this provision may encounter practical issues of compliance. However, states should remain vigilant to the issue of documentary evidence from refugees and potential non-availability.

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National Developments

Switzerland – Federal Administrative Tribunal rules in a case regarding evidentiary assessment in age determination procedures

On 4 March, the Federal Administrative Tribunal of Switzerland overturned a decision on an asylum request due to lack of proper reasoning and evidentiary assessment of the applicant’s age claim.

The applicant, an Eritrean national, applied for asylum as an unaccompanied minor in Switzerland and the State Secretariat for Migration (SEM) ordered a bone test to assess his age. According to the results of the test, the applicant was found to be 18 years old. The applicant had stated that he did not possess an identity document but he had a baptism certificate and his student card in support of his argument. The authorities rejected his claim due to lack of identification, the test results and his physical appearance, and proceeded to issue a take charge request to Italy, as they had received a Eurodac hit.

After Italy refused the request, the SEM examined the applicant’s asylum claim and rejected the application noting the lack of identity documents and his late mention of draft evasion-related claims. On appeal, the Tribunal first cited the scientific sources documenting the margin of error and individual variability of age assessment medical examinations. Due to inevitable deviations after the age of 16, the bone analysis alone cannot prove the applicant’s age when it comes to the age of 18, the latter being the threshold of majority.

According to the consistent jurisprudence of the Committee of Appeals in asylum matters, the former competent body, this test cannot call into question the statements of an asylum applicant regarding his age unless the difference between the alleged age and the test result was more than three years. The results can be used to establish that the person is attempting to mislead the authorities regarding their identity but it could not be used to officially determine whether the applicant is a minor or not. The Tribunal found no reason to depart from this line and stated that the SEM is not entitled to conclude that the applicant is an adult without carrying out an overall assessment of the evidence, including the reasons for the absence of identity documents.

The Tribunal went on to examine, inter alia, whether the SEM had rightly considered the appellant to be of age before hearing his asylum case and whether the procedure was properly conducted. In this connection, it noted that the decision does not contain any reasoning with respect to the applicant’s declared age. Moreover, the conclusions of the officers conducting the hearing are not in conformity with the aforementioned jurisprudence. Conversely, their assessment was arbitrary in considering the bone tests decisive despite their admittedly low probative value.

The contested decision was annulled and the case was remitted back to the SEM for a second and properly motivated decision.

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

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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 Julia Zelvenska (

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

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