ELENA Weekly Legal Update (EWLU)

10 January 2020


European Court of Human Rights United Nations National Developments  NGOs

European Court of Human Rights

Jeddi v Italy: Detention pending expulsion did not violate Article 5 § 1

On 9 January 2020, the European Court of Human Rights (the Court) published its judgment on administrative detention pending expulsion in the case of Jeddi v Italy (No. 42086/14).

Italian police arrested the applicant, a Tunisian national, after they arrived on the Island of Lampedusa clandestinely and without identity documents. Shortly after, they were issued with a removal order and placed in an identification and expulsion centre pending removal, during which time the applicant applied for international protection. While the application was rejected, the Naples District Court found that the applicant was entitled to a residence permit on humanitarian grounds, valid until 31 December 2012. In December 2011, the applicant made an application for international protection in Switzerland and was subsequently returned to Italy under the Dublin Regulation. He was detained in the Milan identification and expulsion centre for 14 days pending his removal. He complained that his detention, which was ordered in spite of the judgment from Naples District Court, was contrary to Article 5 §§ 1 and 4.

The Court observed, inter alia, that the applicant was responsible for taking steps to obtain a residence permit, to which he was entitled. By leaving Italy to make a parallel asylum application in Switzerland the Court found that the applicant had shown a lack of due diligence in this regard. It added that had the applicant provided the judgment from the Naples District Court at the time of their return to Italy he would not have been immediately detained pending removal. Moreover, the Court noted that there may have been a legitimate concern that the applicant would later evade expulsion by leaving the country again. It concluded that applicant’s detention in this case was compliant with the law and not arbitrary. The Court found no violation of Article 5 § 1.

Based on an unofficial translation by the EWLU team.

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B.L. and others v France: Inadmissibility decision in case concerning living conditions in emergency accommodation

On 9 January 2020, the European Court of Human Rights (the Court) published its decision in the case of B.L. and others v France concerning the living conditions in temporary accommodation.

The case concerned 23 applicants of various nationalities who were housed in makeshift tent camp in Metz, France. The first applicant, E.G, made an application for international protection after arriving in France in 2012. Following this, E.G. applied for urgent relief at the Strasbourg Administrative Court, relying on the minimum standards for the reception of asylum applicants under Directive 2003/9/EC. In November 2016, E.G.’s application for a residence permit was dismissed and she was informed that she was to leave the country within 30 days. Applicants 2 to 23 similarly made applications for urgent relief, which were all dismissed. All of the applicants complained that the living conditions in the emergency accommodation were contrary to Article 3 ECHR.

The Court was informed that applicants 2 to 23 had not maintained contact with their lawyer. It therefore concluded that the applicants had lost interest in the proceedings. The cases were struck out of the list. 

In respect of the first applicant, the Court observed that E.G. was accommodated in the Metz tent camp from March 2014 to July 2014. However, it noted, inter alia, that E.G. had not submitted specific details in relation to the living conditions and had therefore not established that she had been unable to cater for her basic needs in the emergency accommodation. The Court decided that E.G.’s claim that treatment exceeded the level of severity necessary to establish a violation of Article 3 ECHR had been insufficiently unsubstantiated. The application was declared inadmissible.

Based on an unofficial translation by the EWLU team.

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United Nations

UN Committee against Torture: Expulsion to Chile amounts to violation of Article 3 CAT

On 2 January 2020, the Committee Against Torture (the Committee) published its views in Flor Agustina Calfunao Paillalef v Swizterland, CAT/C/68/D/882/2018, concerning the risk of torture and inhuman and degrading treatment in the event of return to Chile.

The applicant is a Chilean national and a member of the Indigenous Mapuche people. She argues that Indigenous Mapuche peoples have been victims of violence from Chilean authorities, and that her family have experienced a number of violent acts as a result of their identity. In 1996 the applicant moved to Switzerland and briefly returned to Chile in 2008 to collect her niece. In November 2008, she made an application for international protection for herself and her niece due to fear for her life and physical and psychological integrity. This application and subsequent appeals were rejected and the State Secretariat for Migration notified the applicant that she was to leave the country. The applicant complained that her return to Chile was contrary to Article 3 of the Convention against Torture as she would be exposed to a risk of torture or other forms of inhuman and degrading treatment from both the Chilean authorities and private individuals.

The Committee first noted that, under Article 3 CAT, states must take into account all evidence of gross patterns or mass violations of human rights to determine whether a risk of torture may exist. In this instance, the Committee noted that while there was not a situation of general violence, it did acknowledge the allegations of violations against Mapuche people and the long history of indigenous people’s rights violations. There must nevertheless be a personal risk to the applicant. The Committee noted, inter alia, that the applicant feared she would be affected by abusive implementation of anti- terror legislation due to denunciations she had previously made against the State.

The Committee considered that on the basis of the applicant’s ethnic origin, the persecution of her family, together with her previous denunciations against the State at an international level, that there was a foreseeable risk that she would face torture or inhuman and degrading treatment upon return. It added that States should exercise due diligence to prevent and investigate acts by private individuals amounting to torture. As a result of the applicant’s personal and family context, the Committee concluded that her return would amount to a violation of Article 3 CAT. The Committee added that the State must reconsider the applicant’s asylum application and refrain from expelling her while it is under consideration.

Based on an unofficial translation by the EWLU team.

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National Developments

Italy: Recognition of refugee status to a victim of human trafficking from Edo State, Nigeria

On 6 November 2019, the Tribunal of Rome ruled on the recognition of the refugee status to a woman victim of human trafficking because of the well-founded risk of re-victimization in case of return to the country of origin.

The applicant decided to leave Nigeria after the killing of one of her sons and her husband by a rival cult in Benin City. After she was put in contact with a woman who promised to help her to reach Europe and find a good job in exchange for a large sum of money. In Libya, the applicant was harassed multiple times and forced to prostitution. Once in Italy, the applicant received multiple threats as she refused to cross the border to France as promised. 

The Tribunal found the story of the applicant consistent with the situation reported by EASO on human trafficking in Edo State. The judge highlighted that even if the trafficking experience was currently over, the risk of persecution and re-victimization in case of return to Nigeria was well-founded in light of the applicant’s gender and origin. For these reasons, the Tribunal recognised the refugee status of the applicant.
Thank you to Francesca Zalambani, Legal Assistant at ECRE, for assisting us with the summary. Based on an unofficial translation by the EWLU team.

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Malta: Court of Criminal Appeal overturns decision of Magistrates Court in sea rescue case

On 7 January 2020, the Court of Criminal Appeal published its judgment in Police vs Claus-Peter Reisch (Appeal No. 150/2019).

The case was brought by Captain Reisch, who was arrested in 2018 following the rescue of 234 migrants from the Mediterranean Sea.  He was charged with two offences: entering Maltese waters without the necessary registration or licence; and using a vessel for commercial purposes without a licence. In the initial judgment, delivered in May 2019, he was found guilty of charge one and issued with a €10,000 fine.

The Court of Criminal Appeal noted, inter alia, that the Magistrates Court had failed to consider arguments presented regarding the complainants lack of criminal intent. Indeed, the Court concluded that the prosecution had failed to bring sufficient evidence to show criminal intent in relation to the navigating in Maltese waters without necessary and correct registration. As a result, the Court of Criminal Appeal quashed the ruling of the Magistrates Court.

Based on an unofficial translation by the EWLU team.

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Germany: Visa applications for family reunification must be treated as urgent for those soon to reach age of majority

The Administrative Court of Berlin recently published its decision (38 L 442.19 V) on family reunification cases concerning minors soon to reach the age of majority.

In its decision, the Court states that applications for visas for family reunification as a subsidiary protection beneficiary must be treated as particularly urgent by the immigration authorities when the person entitled to apply for said visa  is close to the age of eighteen. Indeed, in such cases, the Aliens department has to ensure that applications are processed preferentially and expeditiously to ensure that the rights of minors entitled to subsidiary protection are protected.

Based on an unofficial translation by the EWLU team.

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Greek Council for Refugees: Interim measures to unaccompanied minors living in the RIC and Samos Island

The European Court of Human Rights recently issued interim measures to unaccompanied minors living in reception and identification centres (RIC) and Samos Island.

The case, which was brought by the Greek Council for Refugees, together with Still I Rise and Doctors Without Borders, concerned five unaccompanied teenage asylum seekers living in RIC and Samos Island pending their transfer to a centre with better living conditions. The applicants in the case complain that their living conditions constituted a gross violation of Article 3 ECHR due to a lack of access to medical services, security, food, and adequate hygiene facilities. Such conditions are exacerbated due to the age of the applicants, who also alleged that adults were able to access areas specifically reserved for minors. The organisations have called upon the Greek authorities to take prompt steps to ensure the effective protection of young people seeking international protection. Such effective protection would include, inter alia: the introduction of an effective guardianship system; increasing access to suitable accommodation for minors; and prohibiting the legalisation of juvenile detention. 

Interim measures, issued under Rule 39 of the Rules of Court, serve as an indication to the Greek authorities to refrain from transferring the unaccompanied applicants, but are also brought to ensure that the reception conditions are compatible with the European Convention on Human Rights, namely Article 3.

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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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