ELENA Weekly Legal Update (EWLU)

27 November 2015


European Court of Human Rights European Union
National Developments NGOs

European Court of Human Rights

Mahamed Jama v. Malta (no. 10290/13) [Articles 3, 5(1)f) 5(4)], 26 November 2015

This case relates to a Somali national who entered Malta irregularly by boat in May 2012. She was registered by immigration police, as an adult, although she allegedly claimed to be sixteen years old. She was detained in Lyster Barracks pending removal. A few days later she appealed against her removal decision and return order, and applied for asylum. Two months later she was interviewed as part of an age assessment procedure, which was followed by medical testing.  A formal age assessment decision was made in January 2013. She was then interviewed in relation to her asylum claim and a decision was made on 2 February 2013 to grant her subsidiary protection status. She was notified and released from detention 5 days later, on 7 February 2013.

The applicant claimed that the conditions of her detention amounted to a violation of Article 3 ECHR. With regard to the admissibility of this complaint, the government submitted that the applicant had not made use of domestic remedies. The Court rejected this argument finding that the hypothetical application of interim measures pending constitutional redress proceedings  did not make this remedy effective in terms of preventing ongoing violations and providing compensation. Further the government had not addressed previous concerns raised by the Court in its case-law regarding the accessibility of such domestic remedies due to the lack of access to effective legal aid for immigration detainees in Malta.

Turning to the merits of the Article 3 complaint, the Court considered that the size of her living space, which did not go below 5 metres for almost the whole duration of her detention (except for 1 month) taking into account the common areas, did not go below the acceptable minimum standard. Noting that detention conditions at Lyster Barracks had been considered previously in Aden Ahmed  v. Malta the court reiterated the importance of detainees to have access to outdoor exercise, finding it regrettable that the applicant was prevented from going into the yard for between five and nine weeks, which was not justified by the government citing security concerns. The Court also had concerns in relation to the applicant’s complaints of suffering from the cold and heat and regarding the lack of female staff at the centre.

However the Court observed that according to a CPT report, the centre had undergone various improvements, there were no concerns about hygiene facilities and her basic needs regarding food and clothing were met. It concluded that the cumulative effect of the conditions complained of did not meet the threshold of degrading treatment within the meaning of Article 3 ECHR.  Judge Casadavall dissented from the majority on this aspect; finding a violation of Article 3 and calling on Malta to ensure conditions of detention that were consonant with human dignity.

Turning to Article 5(4), the applicant complained that she had no remedy to challenge the lawfulness of her detention.  The Court recalled that it had repeatedly examined this issue and found that applicants did not have an effective and speedy remedy available in domestic law in Malta (Louled Massoud v. Malta; Aden Ahmed v. Malta; Suso Musa v. Malta).
It rejected the government’s argument that constitutional proceedings provided an effective remedy, which was not substantiated and saw no reason to depart from its previous case law, finding that Article 5(4) was violated.

Finally, in relation to Article 5(1) the applicant argued that her detention for over eight months was unlawful and arbitrary. The Court considered that her detention pending her age assessment and the processing of her asylum claim was provided for in domestic law, and was for the purpose of preventing her effecting an unauthorised entry. Although she claimed to be a minor, the court could not ignore the fact that she was later found to be an adult. Consequently the length of her overall detention was not unreasonable. On the other hand, her detention for an additional 5 days following the grant of subsidiary protection not covered by a ground in Article 5 or otherwise justifiable, thus violating Article 5(1).

The ELENA Weekly Legal Update would like to thank Neil Falzon, ELENA National Coordinator for Malta, for notifying us of this judgment. 

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European Union

FRA: Handbook of European Law on the rights of the child 

The EU Fundamental Rights Agency in cooperation with the Council of Europe and the European Court of Human Rights has published a handbook on European law relating to the rights of the child.

It contains a chapter on migration and asylum which examines and analyses relevant international law, EU asylum acquis and CJEU and ECtHR case-law relating to entry and residence, age assessment, family reunification, detention, expulsion and access to justice. 

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National Developments

The Netherlands: Raad van State rulings on Dublin transfers to Hungary 

On 26 November 2015, the Raad van State (the highest administrative court in the Netherlands) allowed the appeals of two asylum seekers to prevent their transfer to Hungary, under the Dublin III Regulation. Lower courts are now obliged to follow this ruling, which has consequences for all Dublin-Hungary cases in the Netherlands.

The appellant in case 201507248/1 applied for asylum in the Netherlands in May 2015, having previously travelled through Hungary. Hungary accepted a take back request pursuant to the Dublin III Regulation in June 2015 and thus a decision was made by the Secretary of State not to consider her application in the Netherlands.

The applicant appealed, against a dismissal from The Hague Court, arguing that transfer to Hungary would be contrary to  Articles 3, 5 and 13 ECHR, submitting evidence that showed several shortcomings in the asylum procedure including reception capacity, living conditions, detention, availability of legal aid, access to an effective remedy and the risk of refoulement.

Relying on M.S.S. v Belgium and Greece  the Raad van State considered that the evidence submitted gave rise to reasonable doubt with regard to the inter-state legitimate expectation. It considered that the Secretary of State had a duty to ascertain that the situation in another Member State would not lead to a violation of Article 3 ECHR, and had failed to do so. The Secretary of State was therefore obliged to make further investigation into whether the situation of Dublin transferees in Hungary would lead to a violation of the ECHR.

The same finding was made in case 201507322/1, decided by the Raad van State on the same day. The Secretary of State may not appeal against these decisions, and must now make another decision in relation to the two asylum claims.

Based on an unofficial 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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Belgium: Council for Alien Law Litigation ruling on FGM in Guinea 

This case relates to a national of Guinea who requested asylum in October 2012 on the basis of a fear of both her and her daughter being subjected to forced genital mutilation (FGM) by her in-laws. The claim was rejected in July 2013, on reasons of her profile and credibility on the basis that neither her nor her sisters had undergone FGM, and that she lived in a modern part of the country. Her appeal was dismissed. She lodged a new asylum claim in July 2014 based on the same fears but with the additional element that her sister had undergone FGM since the first claim. After litigation on whether this amounted to a subsequent claim, the substance of her claim was considered, but rejected once again. She appealed against this decision to the Council for Alien Law Litigation (CALL).  

She argued that her daughter was at risk of FGM by her in-laws which she was opposed to, and that she was at risk of persecution by her husband, who she had been forced to marry, for fleeing her marital home. The CALL considered that each individual had distinct fears of persecution and thus their claims should be examined separately. It considered that the applicant’s mental and physical state explained the vagueness of her initial declarations about her claim, and that the evidence and statements as a whole were relatively precise and convincing. The benefit of the doubt should be given on secondary aspects.

It found that the applicant had provided sufficient medical documents and oral evidence as to the fact that her sister had undergone FGM. It was plausible that she had been forced to marry her husband and that her risk of FGM was well-founded in view of the prevalence of FGM in Guinea, particularly among her ethnic group (Malinke). The information submitted showed that the Guinean authorities had not been able to stop this practice due to problems of corruption, incompetence and nepotism and that the applicant would not be able to seek protection from the national authorities. The CALL considered that the applicant had established that she had been forced to marry a man chosen by her uncle. In addition, the medical evidence she had provided showed that she had been suffering from psychological issues and PTSD which had affected her credibility and her ability to provide a precise and detailed account of her asylum claim.

Turning to the applicant’s daughter, the evidence indicated that there was a significant objective risk for girls of that age to undergo FGM, and that her father and his family were attached to this practice, indicated by the fact that her aunt had undergone FGM. It was therefore established that she would face a risk of persecution on return to Guinea as a member of a particular social group, women. The Council decided that the applicant and her daughter should be recognised as refugees.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Benoit Dhondt of ELENA-Belgium for providing us with this judgment. 

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France: Council of State upholds order of Lille administrative tribunal judge on humanitarian conditions in Calais   

The urgent applications judge (‘juge des référés’) of the Council of State has upheld the order of the president of the Administrative Tribunal of Lille of 2 November 2015, on improving humanitarian conditions for migrants at Calais. A summary of this case is available in English here.

The Interior Ministry lodged an appeal requesting the order to be cancelled, arguing that the judgment contained errors of law by failing to specify the jurisdiction of the State relating to the alleged failings. The commune of Calais also appealed arguing that it had not been shown that any deficiency in exercising municipal powers had subjected migrants to inhuman and degrading treatment, and that it was the State that had responsibility for the security of the site.  The applicants lodged a defence and cross-appealed, arguing that their entire list of requests should be granted. This was supported by the third-party interveners, which included ELENA-France.

The Council of State judge considered that the nature of the case was urgent and so Article L.521-2 of the Code of Administrative Justice was applicable. Despite actions taken by the public authorities, the conditions of accommodation, food, access to water and sanitation and safety of the population living in the camp at Calais constituted an emergency. The judge referred to relevant provisions of domestic legislation relating to the obligations of the State towards homeless persons, those in emergency shelters and to provide decent material conditions to asylum seekers. The judge noted that the public authorities had recently and would continue over the upcoming months to take numerous measures to accommodate and provide social, medical and psychological assistance to the most vulnerable people at the camp, finding that there was no need to order measures on these points. The judge also upheld the earlier finding that there was no deficiency in relation to provision of meals and malnutrition of the camp population. 

However, the judge agreed with the first instance decision that unaccompanied minors in a situation of distress were not always identified and taken charge of by the public authorities, that access to drinking water and sanitation was clearly insufficient, the lack of rubbish collection exposed inhabitants of the camp to insalubrious conditions, and that there was inadequate access for emergency vehicles. These living conditions were likely to expose migrants living on the site to inhuman or degrading treatment and thus the measures ordered by the first instance judge to ameliorate the situation were approved. The further measures requested by the applicants were considered not to be measures of urgency, so fell outside the remit of the powers in Article L.521.

The judge of the Council of State therefore rejected both appeals and upheld the previous order in its entirety. This means that the measures ordered are now definitive and the public authorities are obliged to take necessary action.

Based on an unofficial ELENA translation. 

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UK: Home Office Country Information and Guidance on Hindus and Sikhs in Afghanistan

The UK Home Office has updated its Country Information and Guidance for decision makers in relation to Hindus and Sikhs in Afghanistan, following the Upper Tribunal Country Guidance case of TG and Others v. The Secretary of State for the Home Department.

Its policy states that in general members of the Sikh and Hindu communities in Afghanistan do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity per se, taking into account the cumulative impact of discrimination. However personal circumstances of an individual may reach this threshold. At a local level, the police are not always willing to provide effective protection to members of these communities who experience serious harm. Internal protection alternative will depend on individual circumstances. 

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Joint intervention in N.D. v. Spain (no. 8675/14) and N.T. v. Spain (no. 8697/15) 

The AIRE Centre along with ECRE, Amnesty International and the International Commission of Jurists (ICJ)   jointly intervened in the joint cases of N.D. and N.T. v. Spain relating to alleged refoulement to Morocco by the Spanish authorities in Melilla.
The joint submission focuses on the application of Article 4 of Protocol No. 4 ECHR (collective expulsion) in the context of denial of access to the territory and asylum procedures at the border, where no steps are taken to identify those entitled to international protection or to provide an opportunity for them to submit such a claim. Reliance is placed in particular on the ECtHR cases of Hirsi  Jamaa v. Italy, Sharifi and Others v. Italy and Greece and  Khlaifia and Others v. Italy on collective expulsion and access to the territory, relevant principles of EU law set out in the EU Charter of Fundamental Rights as interpreted by the CJEU, and EU law obligations set out in the Asylum Procedures Directive on effective access to the asylum procedure.
The interveners submit that the prohibition on refoulement applies to acts or omission resulting in exclusion of individuals from the territory of an ECHR Contracting Party or at its land borders. The collective denial of access to the territory and jurisdiction without consideration of individual circumstances amounts to collective expulsion, and also engages an EU State’s responsibility under the EU asylum acquis. Such measures are an aggravated violation of Article 4 Protocol 4 ECHR due to additional serious breaches of international and EU law obligations.
Nils Muižnieks, CoE commissioner for human rights also submitted a third party intervention, focusing on the factual situation in Melilla.

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ECRE: Updated AIDA Country Reports on Germany and the Netherlands 


The updated AIDA country report on Germany written by the Informationsverbund Asyl und Migration documents the content and effect of several legislative reforms taken recently against the backdrop of a record number of arrivals in the first ten months of the year.
As amended in October 2015, the list of “safe countries of origin” includes Albania, Kosovo and Montonegro. Under the new rules, asylum seekers from safe countries of origin are required to stay in initial reception centres for the whole duration of their asylum procedures and access to employment is excluded. However, this requirement is likely to be problematic in practice, in view of the state’s obligation to allow asylum seekers to leave initial reception centres if a decision on their claim cannot be taken within a short time-frame.
As of 21 October 2015, the policy of suspending Dublin procedures for Syrian nationals, announced in late August, came to an end. The rules of the Dublin III Regulation have therefore been reinstated in respect of Syrians coming to Germany.
Moreover, a new dispersal system has been set up for the distribution of unaccompanied children across the 16 federal states.
Finally, following an amendment of the Residence Act entering into force in August 2015, the grounds for detention of persons subject to the Dublin III Regulation have been defined. The law also sets out a number of wide-ranging criteria used to determine the existence of a “risk of absconding” as a ground for such detention. Nevertheless, detention of foreigners for the purpose of deportation (including Dublin cases) has generally remained low in 2015 as in 2014.
Based on the AIDA news article, dated 24 November 2015, available here.

The Netherlands

The updated AIDA Country Report on the Netherlands written by the Dutch Council for Refugees has also been published, which details the implementation of the recast Asylum Procedures and Reception Conditions Directives in the Netherlands

It describes the introduction of a formal border procedure at the application centre in Schiphol airport. The previous unlimited grounds of rejection have been curtailed to claims where the Dublin Regulation is applicable and to those which are inadmissible or manifestly unfounded. Additionally, the maximum amount of time spent within the border procedure has been reduced from six to four weeks. Nonetheless, the report raises concern that systematic border detention, regardless of a time limit, is not in conformity with international and EU standards and, in particular, with the obligation to assess alternatives to detention.

The AIDA update further highlights amendments which have been made to national legislation in order to incorporate the medical examination and special procedural guarantees codified in the recast Asylum Procedures Directive. Notably, in line with Article 18 of the recast Asylum Procedures Directive, national legislation in force provides for a discretionary medical examination to be undertaken and used as corroborative evidence where, for example, an asylum seeker provides information on the presence of psychological or physical traces of harm. This may be funded by the State; even where the Immigration and Naturalisation Service (IND) believes that there is no need for an examination to be undertaken. Moreover, the identification of asylum seekers with special needs has been laid out in domestic law and working instructions given to the IND so that both physical, psychological and self-indications are to be used for the identification of vulnerability. However, there are uncertainties as to the implications and effects on the actual procedure when vulnerability is identified given that those who are vulnerable start their procedure and can be processed within the standard short asylum procedure. 

Based on the AIDA news article, dated 24 November 2015, available here.

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Amnesty International: Report on people originating from the North Caucasus seeking international protection 

Amnesty International has published a report (in French) relating to people originating from Chechnya and the North Caucasus region seeking international protection. It notes that since the mid-2000s many European countries have been more restrictive when approaching the eligibility for international protection seekers originating from the North Caucasus leading to the rejection of their claims and their expulsion.

It finds that while there have been improvements in the security situation in this region, there has not been a significant improvement in the human rights situation, with regular reports of extrajudicial executions, enforced disappearances, torture which is often accompanied by sexual violence, ill-treatment, arbitrary prosecutions and illegal detention particularly for those suspected of being a member of an illegal armed group.

It recommends that all those that seek international protection should be considered as potentially eligible, and have the right to a fair and efficient determination procedure, taking into account the merits and individual circumstances of the case. Amnesty International considers that there is no internal protection alternative in Russia for Chechen and North Caucasian  in need of protection, particularly where  risk of persecution or serious harm emanate from the authorities.

Based on an unofficial ELENA translation.

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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