ELENA Weekly Legal Update (EWLU)

20 November 2015


European Union Council of Europe National Developments NGOs

European Union

European Parliament: Study on protecting human rights of migrants in the Mediterranean

The Directorate General for External Policies of the European Parliament has published a study, ‘Migrants in the Mediterranean: Protecting Human Rights’. It analyses the legal framework protecting the rights of migrants and current human rights violations at each stage of the Mediterranean migratory route. It then evaluates existing and planned EU policies before making specific recommendations to ensure a coherent human rights-based approach to improve the protection of those aiming to reach the EU. 

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Council of Europe

Nils Muižnieks submits third party intervention in N.D. v. Spain (no. 8675/14) and N.T. v. Spain (no. 8697/15)

This case, currently pending before the ECtHR relates to two applicants who allege being refouled to Morocco by the Spanish authorities in Melilla. The Council of Europe Commissioner for Human Rights, Nils Muižnieks, has submitted written observations based on his visit to Melilla and Madrid in January 2015 and other credible reports.
He finds that all the available information points to the existence of an established practice of summary return of migrants who attempt to enter Melilla by climbing the fence surrounding the city, by Spain’s border guards to Morocco. These take place outside formal procedures, with no identification of the persons concerned or assessment of their individual situation, which prevents them from effectively exercising their right to seek international protection. In addition, migrants who have been subject to summary removal have no access to an effective remedy to challenge their removal or seek redress for ill-treatment during these operations. He has already urged the Spanish government to reconsider its recent amendment to the Aliens’ Act which establishes a special regime for Ceuta and Melilla, as it failed to provide clear guarantees against refoulement and collective expulsion, and to establish adequate safeguards to the right to seek asylum. 

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CPT: Report on Ireland

The Council of Europe Committee for the Prevention of Torture (CPT) has published its report to the Government of Ireland following its sixth periodic visit in September 2015. In relation to immigration detention, it found that immigration detainees were being held in prisons and police stations pending their deportation. This could be in mixed cells with remand and convicted prisoners, where some were subject to bullying. Prison staff were not equipped or trained to look after immigration detainees.
The CPT emphasised that a prison is by definition not a suitable place in which to detain someone who is not suspected or convicted of a criminal offence. It recommended that the Irish authorities pursue their current plans to establish a specifically designed centre for immigration detainees, with material conditions and a regime appropriate to their legal situation. In the meantime, measures should be taken to limit the exposure of immigration detainees in prisons to remand and sentenced visitors, they should be offered as much time out of their cell as possible and they should be afforded open visits. In addition, interpretation services should be accessible in prisons to assist immigration detainees and staff. 

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GRETA: Convention on Action against Trafficking monitoring reports on Cyprus and Slovakia

In its report on Cyprus, GRETA notes that the asylum service has an initial screening process for applications for international protection through which potential victims of trafficking may be identified, but is yet to adopt a manual on the National Referral Mechanism. It shares concerns of UNCAT about shortcomings in this process and calls on the Cypriot authorities to ensure effective measures to identify all victims of trafficking as soon as possible and provide them with immediate rehabilitation and priority access to asylum determination procedure.
It takes into account concerns raised by civil society and UNHCR as to the lack of identification procedures for child victims of trafficking among irregular migrants and asylum seekers, and the difficult legal aid rules for children seeking asylum, which are the same as for adults. It urges the authorities to take measures to ensure that there is a procedure to identify child victims and set up a referral mechanism taking into account special needs and circumstances of children and also ensure they benefit from appropriate accommodation, legal guardianship and access to psychological and legal support.
In its report on Slovakia, GRETA welcomed measures taken by the authorities to introduce a formal procedure to identify victims of trafficking, but encouraged it to take further steps to ensure that they are identified, and in particular, among asylum seekers and persons placed in immigration detention centres. It also recommended periodic training of professionals, and regularly updated manuals and instructions to be provided to assist relevant professionals with the identification of possible victims of trafficking. In addition, the Slovak authorities should enact statutory rights to assistance for victims and ensure they have effective access to legal aid and legal counselling.

The report highlights problems in relation to the representation of children’s interests by legal guardians, who are responsible for ensuring access to asylum procedures for unaccompanied foreign minors. Long delays in appointing them may impede the process of their identification as a victim of trafficking and their protection. GRETA also raises concerns about Slovakian legislation and procedures for the age assessment of unaccompanied minors, which presumes that a person that claims to be a child, where this is not obviously so, will be considered to be an adult pending the results of a medical examination. It called on the authorities to review these to ensure that the best interests of the child are effectively protected.

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National Developments

Czech Republic: ECtHR grants interim measure to prevent Article 3 violation regarding detention of family with minors

This interim measure relates to an Afghan family consisting of parents and four minors, who were detained at the Bělá-Jezová Detention Centre for irregular entry into the Czech territory. The application was introduced with help of their legal representative from OPU, to prevent an ongoing violation of Article 3 ECHR on account of inhuman and degrading conditions at the centre. The applicants relied in particular on two reports of the Czech Office of the Ombudswoman, published in August and October 2015, in which she provides a detailed description of the poor conditions and shortcomings at the centre, stressing that it is not suitable for detention of families with children. She described overcrowding, poor hygiene conditions, unsuitable food, inadequate healthcare, almost no possibility of outdoor exercise, constant guarding by uniformed security forces, limited access to legal assistance and a lack of accommodation of children’s specific needs.
On 22 October 2015, the ECtHR granted the interim measure, obliging the Czech government to place the applicants in conditions compatible with the requirements of Article 3 ECHR. It made reference to the case of Popov v. France and requested further factual information from the Czech government on the conditions of detention of foreigners at Bělá-Jezová, in particular in relation to the capacity of the centre, the number of persons there, the hygiene conditions and the reception of children.
The family were released a day before the given deadline on the basis that it was not possible to secure travel documents for their deportation, and so detention was no longer necessary. They received an order to leave the country, with a one year re-entry ban.
The ELENA Weekly Legal Update would like to thank OPU for providing us with this information.

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Netherlands: Case C-601/15 (PPU) Raad van State urgent preliminary reference on detention, the Reception Directive, and the EU Charter

The Administrative Law Division of the Raad van State has sought an urgent preliminary ruling from the CJEU on whether Article 8(3)e) recast Reception Conditions Directive (rRCD) is valid in light of the Charter of Fundamental Rights of the EU in a situation where a third country national is detained pursuant to this provision, who has the right to be allowed to remain in a Member State until a decision is taken on his application at first instance. This is in view of the explanatory notes to the Charter which provide that the limitations to Article 6 of the Charter may not extend further than that in Article 5 ECHR, and the ECtHR interpretation of this, in particular in Nabil and Others v. Hungary that detention of an asylum seeker violates Article 5(1)f), if the detention is not imposed for the purpose of removal.
The case relates to a third country national who made another subsequent asylum application (third application) in the Netherlands. In January 2014, he was given a rejection decision and ordered to leave the EU with a 10 year entry ban. He applied for asylum again in February 2015. The applicant was convicted of a number of criminal offences and following the end of his latest period of criminal detention in September 2015, his continued detention was ordered on the basis that he posed a threat to public order. At this time, a first instance decision on his asylum application was still pending. No use was made of the possibility to withhold from the applicant the right to remain in the Netherlands pending his application.
Article 8(3) e) rRCD allows the detention of an asylum applicant ‘when the protection of national security or public order so requires’, which is transposed into national law. National law also provided that a third country national would be lawfully resident in the Netherlands pending a first instance decision on an application for a residence permit, and that they could not be deported unless a subsequent application is definitively rejected as inadmissible or manifestly unfounded.
The Raad van State considers that an issue arises as to whether Article 8(3) e) is contrary to Article 6 of the Charter, which corresponds to Article 5 ECHR. In view of the ECtHR ruling in Nabil and Others v. Hungary at para. 35, Article 5(1)f) would be violated where an applicant is detained pending asylum proceedings, in circumstances where this could not be for the purpose of deportation, as this is not possible under national law. Article 9 (2) and (3) of the recast Asylum Procedures Directive (rAPD) allow for an exception to the right to remain in the Member State for the purpose of the procedure only when there is no risk of refoulement. To assess such a risk a preliminary examination is required into the question whether new elements and circumstances have been raised. This examination has not taken place which means that in case of the applicant this exception is not applicable. This means that the applicant has the right to remain according to Article 9 (1) rAPD.
It concluded that both national law and relevant provisions of the rAPD prevented removal of the applicant prior to a decision on his asylum claim, which means that the ground for detention in Article 8(3)e) rRCD does not pursue the aim of removal, as required by Article 5(1)f) ECHR. The proceedings in this case are suspended until the CJEU has given its ruling. 
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Sadhia Rafi, ELENA national coordinator in the Netherlands, for her assistance. 

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UK: Country Information and Guidance Report, Security and Humanitarian situation in Yemen 

The UK Home Office has published a report on the security and humanitarian situation in Yemen to guide its decision makers. In relation to the general humanitarian situation, it notes that the UN has declared a level 3 emergency response and that UNHCR has called for all countries to suspend forcible returns to Yemen. It considers that the humanitarian situation and situation of indiscriminate violence in Aden and some areas in Southern Yemen are severe but not so severe as to amount to a breach of Article 3 for the general population. Conditions in the centre and North of the country are likely to reach this threshold, putting a person at real risk of harm solely by being present there, pursuant to Article 15c) of the Qualification Directive. It considers that internal relocation to Aden or Southern Yemen may be viable depending on the person’s individual circumstances.



ECRE: AIDA Country Report on Greece

The Asylum Information Database (AIDA) compiles information on asylum procedures, reception conditions and detention across 18 countries.
A new updated AIDA country report on Greece has now been published, written by the Greek Council for Refugees

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Amnesty International: Report on push-backs and human rights violations at EU’s borders

Amnesty International have published a report, ‘Fear and Fences: Europe’s Approach to Keeping Refugees at Bay’ which documents border management measures employed by Spain, Greece, Bulgaria and Hungary, and push-back practices which are usually accompanied by ill-treatment or excessive use of force, by the authorities of Spain, Greece and Bulgaria.  

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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 Zarina Rahman (zrahman@ecre.org), or Julia Zelvenska (jzelvenska@ecre.org).

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