ELENA Weekly Legal Update (EWLU)

10 February 2017


European Union National Developments NGOs ECRE

European Union

CJEU: Case C‑560/14 M. v. Minister for Justice and Equality, Ireland and the Attorney General

On 9 February 2017 the CJEU has given a preliminary ruling in Case C‑560/14 M. v. Minister for Justice and Equality, Ireland and the Attorney General. The case concerns a Rwandan national whose asylum application and application for subsidiary protection were consecutively rejected by the Irish authorities. The Irish High Court held that the Minister had wrongly failed to afford the applicant an effective hearing when his application for subsidiary protection was being examined. In an appeal against this decision, the Supreme Court of Ireland referred a request for preliminary ruling to the CJEU on the scope and content of the ‘right to be heard’ in EU law of applicants for subsidiary protection

According to the Court of Justice, the right to be heard, as applicable in the context of the Qualification Directive (Directive 2004/83/EC), does not require that, where national legislation provides for two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place.

An interview must nonetheless be arranged where specific circumstances, relating to the elements available to the competent authority or to the personal or general circumstances in which the application for subsidiary protection has been made, render it necessary in order to examine that application with full knowledge of the facts, a matter which is for the referring court to establish. Such circumstances include, in particular, any specific vulnerability of the applicant, due to, inter alia, his age, state of health or the fact that he has been subjected to serious forms of violence.

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CJEU AG Opinion in Case C-638/16 PPU X. and X. v. État Belge

On 7 February 2017, Advocate General (AG) Mengozzi issued an Opinion in case C-638/16 PPU X. and X. v. État Belge. He stated that Member States must issue a humanitarian visa where it is shown that a refusal would place persons at risk of torture or inhuman or degrading treatment.

In casu a Syrian couple with three children from Aleppo applied for a short term visa on the basis of Article 25(1) of the Visa Code at the Belgian Embassy in Lebanon in October 2016. The Aliens Office refused the application arguing that the family intended to stay longer than the 90-day period required by the Visa Code since the family expressed its wish to apply for international protection after arrival in Belgium. The Belgian Council on Alien Law Litigation (CALL) referred two prejudicial questions to the CJEU asking for an interpretation of the Visa Code and Article 4 and 18 of the Charter of Fundamental Rights concerning prohibition on torture and right to asylum.

The AG is of the opinion that the family’s situation is governed by the Visa Code both ratione personae and ratione materiae. Since their situation falls under the Visa Code, and therefore European Union law, the AG states that the CJEU is competent to rule on the preliminary questions.

The first preliminary question asked whether the reference to ‘international obligations’ in Article 25(1) of the Visa Code included the Charter, the ECHR and Article 33 of the 1951 Geneva Convention. The AG reasons that the contentious decisions of the Aliens Office are based on the Visa Code, which is a part of EU law in the sense of Article 51(1) of the Charter and therefore subject to the obligations in the Charter which are to be respected by Member States’ authorities irrespective of any territorial criterion. The AG furthermore opines that it is not necessary to address Article 3 ECHR and 33 of the 1951 Convention separately since Articles 4 and 18 of the Charter offer at least equal protection.

The second question addressed by the AG demands whether Member States, having a margin of discretion on issuing visas, are obliged to issue a visa on the basis of Article 25(1) if there is a clear risk of a violation of Article 4 and/or 18 of the Charter or another international obligation and whether the existence of ties between the applicants in the Member State in questions are relevant. The AG states that refusing a visa in casu could directly lead to a breach of Article 4 of the Charter and that applying the Visa Code does not exempt the Member States from their positive obligation under Article 4. The margin of discretion enjoyed by Member States must be exercised within the framework of EU law including the Charter. Due to the absolute nature of the right enshrined in Article 4, the AG deems ties between the applicant and the Member States irrelevant. The AG thus concludes that the Member State must issue a visa. The AG stresses that the proposed reasoning is the only one which does justice to the EU’s values.

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

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CJEU AG Opinion in Case C-578/16 PPU C.K. and Others v. Supreme Court of Republic Slovenia

On 9 February 2017, Advocate General (AG) Evgeni Tanchev has given his Opinion in Case C-578/16 PPU C. K. and Others v. Supreme Court of Republic Slovenia, which relates to the interpretation to be given to Articles 3(2) and 17(1) Dublin III Regulation (Regulation No. 604/2013). The case concerns the transfer of a couple and their newborn child from Slovenia to Croatia. Pursuant to psychiatric assessments the mother and the child were to remain at the reception centre in Slovenia since they required care. Indeed, the mother had been suffering from depression and periodic suicidal tendencies since the birth of her newborn.

The Slovenian Constitutional Court held that there were no systemic failures in the asylum procedure and reception conditions for applicants for international protection in Croatia which entail a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, but nevertheless the applicants could not be transferred to Croatia. The Constitutional Court considered that the Slovenian authorities had to take into account all the relevant circumstances, in particular the personal situation and the state of health of the applicants. The judgment of the Supreme Court was therefore annulled, with the Constitutional Court remitting it back to the Supreme Court to review all the relevant circumstances. The Supreme Court subsequently referred a request for preliminary ruling to the CJEU on the interpretation of Articles 3(2) and 17(1) of the Dublin III Regulation.
With regards to the first question the AG opined that both the application and the non-application of the discretionary clause under Article 17(1) of Dublin III Regulation fall within the scope of EU law. Moreover, a national court, such as the referring court, must be regarded as a court against whose decisions no legal remedy under national law exists within the meaning of Article 267(3) TFEU, when the possibility to lodge an appeal before the Constitutional Court of the Member State is limited to the examination of a possible violation of fundamental rights and freedoms.

As for the second question posed to the Court the AG states that the CJEU does not need to follow the position of the ECtHR, despite Article 52(3) of the Charter. The AG also explains why Case Ghezelbash (C-63/15) is not relevant to the case in hand. The applicant in Ghezelbash did not allege that he was in danger of being subjected to inhuman or degrading treatment in the responsible Member State, thus the case did not address whether systemic deficiencies are the only ground for preventing transfers under Dublin. The assessment of the circumstances as specified in Article 3(2) Dublin III Regulation (i.e. systemic deficiencies) is thus sufficient to meet the requirements under Article 4 of the Charter, according to the AG. In particular it is not impossible to transfer the applicant to the responsible Member State where the transfer itself entails a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, the AG states.

With regard to the third question, the AG states that Article 17(1) of the Dublin III Regulation cannot be interpreted as meaning that where a Member State is required not to transfer an applicant to the Member State responsible, it must itself examine the application for international protection. The AG dismisses the fourth preliminary question as it is inadmissible.

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

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National Developments

Slovenia: Amendments to Aliens Act signed into law

Amendments to the Slovenian Aliens Act have been signed into law, which entrust the Slovenian Parliament with the power to effectively “close the borders” if this is deemed necessary due to a serious threat to public order and security caused by migrations. According to the amendments, in case the threshold of a serious threat to public order is reached, police officers would be entitled to forcefully turn away all persons arriving irregularly and expressing an attempt for asylum in Slovenia without their asylum claims being heard. Only persons in immediate danger of loss of life, persons who would be in danger of inhuman and degrading treatment in the country of return, persons whose return would not be possible due to medical reasons and persons assessed to be unaccompanied minors will be exempted from this rule. The assessment of all of the above circumstances will be conducted by the police officers in the field.

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Netherlands: Dublin transfer of unaccompanied minor to Switzerland denied after assessment of best interest of the child

On 23 December 2016, the Court of The Hague gave its judgment in a case concerning an Eritrean unaccompanied minor who applied for asylum in the Netherlands. The Dutch authorities held that Switzerland was responsible for processing the application under Article 8 of the Dublin III Regulation (Regulation 604/2013), as the applicant’s older sister was legally residing in Switzerland. The Swedish authorities accepted the take charge request.

The applicant appealed the transfer decision, taking the view that the transfer to Switzerland is not in her best interest since she has no special relationship with her older sister. Moreover, the applicant’s situation has significantly improved, since she resides with another Eritrean minor girl in a foster family in the Netherlands and has a guardian, whereas during the 9 months that she stayed in Switzerland she resided in reception centres for adults.
The court considers that Switzerland, the country where the applicant’s sister is legally staying, is only responsible pursuant to Article 8(1), of the Dublin III Regulation if that is in the best interest of the minor. The Dutch authorities should take into account Article 6(3) of the Dublin III Regulation in determining the best interest of the unaccompanied minor. According to the court, there is no possibility of family reunification, as the applicant was never part of the family of her sister. The fact that the applicant and her sister might form a family in the future does not mean that there currently exists an opportunity for reunification.
The court holds that the applicant, who is almost 15 years old, has taken a clear position and that the Dutch authorities have not made clear why this position would be incorrect, or could be ignored. Furthermore, Nidos, the guardianship institution for unaccompanied minors in the Netherlands, has taken the clear position that it is in the best interest of the applicant if the asylum application would be processed in the Netherlands. The court states that Nidos has the expertise to assess the best interests of the child.

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

EDAL and the ELENA Weekly Legal Update would like to thank Germa Lourens for bringing this to our attention.

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Network for Children’s Rights: “Conditions in refugee camps: the case of Schisto”

The Network for Children’s Rights has published a report on the conditions in Schisto, one of the largest accommodation centers for asylum seekers in Greece. According to the Network, the rights of children as defined by the Convention on the Rights of the Child are being flouted on a daily basis. The Network therefore asks the immediate removal of children and their families from the camp, along with other vulnerable groups such as pregnant women. These people should be housed permanently in protected shelters, appropriately adapted to their specific needs. As for the refugee children’s education, the tutoring program must move at a faster pace and include all children. The Network also states that it is necessary to create smaller accommodation centres, which would be positioned in residential areas.

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Report Swiss Refugee Council: The situation of persons with special reception needs upon return to Italy

The Danish Refugee Council and the Swiss Refugee Council have published a joint report regarding the situation of persons with special reception needs transferred to Italy under the Dublin III Regulation. The report focuses on reception conditions and access to the asylum procedure. It shows that persons with special reception needs are at risk of human rights violations due to the arbitrariness of the Italian reception system.

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AIDA: Updated AIDA Country Reports on Hungary, Serbia and Bulgaria now available

The updated AIDA Country Reports on Hungary, Serbia and Bulgaria have been published on the AIDA website. The reports provide an updated and thorough overview of statistics, legal and policy frameworks and practices in the areas of asylum procedures, reception conditions, detention of asylum seekers and rights of recognised beneficiaries of protection.

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EDAL Blog: The ZAT case and the far-reaching consequences for the Dublin Regulation

Paolo Biondi, PhD candidate at the School of Advanced Study (University of London), has written a blog for EDAL on the UK ZAT case and the far-reaching consequences for the Dublin Regulation. The blog focuses on the ZAT case as a precedent for future cases before EU courts and the need to reform the Dublin Regulation. In doing so, the author first points to the analogies of the two streams of jurisprudence used in ZAT before the Upper Tribunal. Then he focuses on the reasoning of the Court of Appeal in reversing the decision. It argues that the decision of the Upper Tribunal was consistent with the previous jurisprudence while the revision by the Court of Appeal was erroneous. This allows for the conclusion that if a similar or stronger case was brought before the ECtHR on grounds of Art. 3 ECHR, it could be the beginning of a series of landmark cases which would require the EU legislator to introduce wide-ranging reforms of the Dublin Regulation.

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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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