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ELENA Weekly Legal Update (EWLU)

4 October 2019
 

Summary


European Court of Human Rights United Nations National Developments European Union  NGOs

European Court of Human Rights


Kaak and Others v Greece: Lack of an effective remedy constitutes a violation under Article 5 § 4

On 3 October 2019 the European Court of Human Rights published its ruling on the case of Kaak and Others v Greece (Application No. 34215/16) regarding the detention conditions and lawfulness of detention in the VIAL ‘Hotspot’ and SOUDA camp.

The case concerns 49 applicants, of Syrian, Afghan and Palestinian nationality who arrived in Greece by sea between 20 March and 16 April 2016. The applicants were transferred to the VIAL “Hotspot” registration and identification centre and SOUDA camp upon arrival. Expulsion orders were subsequently issued against the applicants as they were deemed to have gained entry irregularly. Authorities held that the applicants would remain in detention until their expulsion to Turkey could be arranged. During this time, very few applicants were able to register asylum applications. The applicants made a number of complaints to the Court, arguing that the detention conditions were contrary to Article 3, their detention was unlawful under Article 5 § 1, and there existed no effective remedy to challenge the lawfulness of their detention under Article 5 §4 of the Convention. The Court found no violation in relation to the complaints under Articles 3 and 5 § 1.

Regarding the complaint under Article 5 § 4, the applicants argued that the communication of their expulsion notices were confusing, abstract, and were not provided in a language that could be understood. Evidence supported by a third party added that no legal information or assistance had been provided to the applicants, and that the expulsion proceedings lacked clarity and did not allow for the prompt review of the lawfulness of detention.

In its ruling, the Court noted, inter alia, that little or no legal assistance had been provided to the applicants to ensure that the expulsion orders had been properly understood. Moreover, the Court noted that legal information provided was vague and made only a superficial reference to an administrative court without exact specification. In light of these issues, the Court was not satisfied that the applicants were able to exercise their right to an effective remedy. The Court therefore found a violation of Article 5 § 4 of the Convention.

Based on an unofficial translation by the EWLU team.

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New communicated cases against Hungary, Greece, and Malta

The European Court of Human Rights (ECtHR) has recently communicated the following asylum-related cases:

  • Ahmadzai v Hungary (Application No. 66069/16): The applicant is an Afghan refugee residing in Hungary. On 24 September 2012, at the time of the pending asylum procedure, an incident occurred between the applicant, a police officer, and guard at the Nyírbátor Detention Centre, which allegedly amounted to ill-treatment. According to the applicant, the investigation into the incident was ineffective. He complains that his treatment during the incident in question and the ineffective procedures guaranteeing protection from inhuman and degrading treatment constitute a violation under Article 3 of the Convention.
 
  • Ayad and Others v Hungary (Application No. 7077/15): The applicants are Algerian, Afghan, and Iranian nationals who were detained while awaiting the assessment of their respective asylum claims. They complain under Article 5 § 1 of the Convention that their detention was unlawful, unjustified and arbitrary. They also complain that there existed no effective remedy to challenge the lawfulness of their detention as required by Article 5 § 4.
 
  • Al Beid and Others v Greece (Application No. 36423/16): The 20 applicants are Syrian nationals. They complain that the living conditions in the EKO camp are incompatible with Article 3 of the Convention. The applicants also complain that the lack of access to effective asylum procedures is contrary to Article 3 in conjunction with Article 13 of the Convention as there is a substantial risk of expulsion to Syria without an examination of their asylum claims.
 
  • Feilazoo v Malta (Application No. 6865/19): The applicant is a Nigerian national who was detained at Corradino Correctional Facility in Malta. Following a conviction in February 2010 the applicant was released on 10 April 2018. Upon release, he requested a return to Spain, where he had previously had a residence permit. This request was refused, and he was informed he would instead be deported to Nigeria. The applicant was informed that he would be detained whilst this process took place, and was not informed of his right to appeal this decision. The applicant refused to be detained again, and was restrained by police in order to force his detention. Both the applicant and the police suffered injuries during this incident. The applicant was informed that he would be charged, despite no lawyer being present. He was also invited to speak to an immigration lawyer to claim asylum. No application was made. The applicant was found guilty and given a 2 year sentence with an order to be deported upon his release. The applicant complains of the excessive use of force under Article 2 of the Convention. He also complains that his immigration detention was unlawful and contrary to Article 5 § 1 of the Convention, and authorities had done everything possible to hinder his application to the Court, including preventing him from gaining access to legal assistance.

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United Nations 


CEDAW: Committee publishes views on R.S.A.A and others v Denmark

On 10 September 2019, the Committee on the Elimination of Discrimination against Women (CEDAW) published its adopted views in relation to the case of R.S.A.A and Others v Denmark. The case concerned the threat of deportation of a stateless Palestinian applicant and her two daughters to Jordan.

The applicant and her daughters had previously resided in Jordan, where she was married to a Jordanian national. They were exposed to threats and abuse from her husband and his family during this time. This abuse escalated after the applicant objected to the forced marriage of her eldest daughter, which resulted in her being beaten and tortured by her husband. The applicant’s middle daughter was due to be married at the age of 15 to a 35 year old man. The applicant and her two youngest daughters subsequently fled Jordan for Denmark, where they unsuccessfully applied for asylum. 

The applicant complains that by ordering deportation, the State had breached its obligation under Articles 1, 2 (e), (f), and 15(4) of the CEDAW Convention. The applicants claimed that there was a serious threat of inhuman and degrading treatment, domestic violence, abuse, and potentially death if they were deported. Referring to CEDAW General Recommendations No. 19 and No. 35, the applicants argued that the State had failed to apply a gender sensitive approach or safeguards in its decision regarding her husband’s aggressive and controlling behaviour, and the cumulative impact of all of his actions.

In its assessment, the Committee noted that the applicant and her daughters would be exposed to a real risk of gender-based violence if returned to Jordan. This risk would increase due to the inability for the applicants to seek protection from Jordanian authorities due to legislative and practical discrimination against women and their status as a Palestinian refugee. Moreover, the Committee noted that the risks posed to the daughters were real and foreseeable, and it was apparent that no specific consideration of the likelihood of forced marriage had been made by the Refugee Appeals Board.

In light of these considerations, the Committee adopted the view that the State party had failed to fulfil its obligations under the CEDAW Convention and the deportation would amount to a violation under Articles 2 (d), (e), and (f) in conjunction with Article 1. The Committee recommended the State reopen the asylum case and refrain from deporting the applicants. It also recommended the Danish Government implement the following general measures: ensure no applicants facing a real risk of gender-based violence are deported; the threshold for asylum applications is measured not against the probability but the reasonable likelihood a claimant has a well-founded fear of persecution or exposure to persecution upon return; and women asylum applicants are provided with timely information regarding international protection procedures.

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National Developments


United Kingdom: Report on the Brook House Immigration Removal Centre

On 24 September 2019, HM Inspectorate of Prions published a report on Brook House Immigration Removal Centre following an unannounced inspection from May-June 2019.

The report focuses on four key areas, before detailing specific concerns to be addressed and offering recommendations. These areas are: safety, respect, activities, and preparation for removal and release. In all four areas, inspectors considered the evidence to show outcomes for detainees were reasonably good against the healthy establishment test. However, concerns were raised regarding, inter alia: the use of disproportionate security arrangements; the absence of a thorough initial risk assessment for detainees; the lack of reports from on-site medical staff detailing the prevalence of suicidal thoughts amongst detainees; the prolonged detention of some detainees; the length of time detainees are confined to cells on a daily basis; lack of systematic identification of individuals with protected characteristics; and the lack of professional interpreters able to assist detainees.

In light of the concerns raised, the inspectors made a number of reservations including, inter alia: reception interviews be completed in private and with appropriate interpreters; a strict time limit apply to the length of detention; allow for the free movement of detainees during the day; provide more information on individuals with protected characteristics; and improve detainee access to email and internet to increase awareness of rights concerning release.

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Italy: Tribunal of Ferrara refers to the Constitutional Court on ban preventing Italian municipalities registering applicants of international protection 

On 24 September 2019, the Tribunal of Ferrara referred to the Constitutional Court to determine the legitimacy of procedures preventing applicants in need of international protection from registering as residents in local municipalities.

The applicant arrived in Italy on 6 October 2017. He formalized his asylum application on 23 October 2017 and was therefore entitled to a six month renewable resident permit as an asylum applicant. On 21 February 2019, he requested to be registered as a resident in the Municipality of Ferrara. His request was rejected on the basis that his status as an asylum applicant was not a valid title for registration. On appeal, the Tribunal stressed that registration represents a prerequisite for exercising several fundamental rights, such as the right to education, work, and social security. The Tribunal also noted that the ban affected a particular category of individuals, namely individuals in need of international protection legally residing in Italy.

The Constitutional Court has previously ruled that limitations for foreigners present in the Italian territory may be justified in instances when individuals stay for short and sporadic periods of time.  However, this cannot be considered the case for applicants of international protection who lawfully reside in Italy with a resident permit for a consistent period. In this sense, the Court highlighted that the applicant’s presence in Italian territory is neither temporary nor short-lived. Status as an applicant of international protection is, in fact, a prerequisite of stable recognition with ex ante effects.

The Court concluded that the registration ban for applicants of international protection interferes with the principle of equality enshrined under Article 3 of the Italian Constitution, as well as Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights, and Article 12 of the International Covenant on Civil and Political Rights (ICCPR). The Municipality of Ferrara has therefore been ordered to accept the applicant’s residence request as precautionary measure while the matter is referred to the Constitutional Court.

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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European Union


EASO: Eritrea country of origin information report

On 30 September 2019, European Asylum Support Office published its country of origin report on Eritrea. The report aims to provide updated information on international protection determination in Europe.

As well as providing an overview of foreign and the domestic legal framework, the report comments on key areas in relation to international protection which include, inter alia: the structure of Eritrea’s national service, highlighting the recruitment of children; legal and illegal exit from Eritrea, including information on the treatment of individuals attempting to cross the border; and the treatment of returnees in various circumstances, including voluntary and forced returns.

The report makes a number of observations relevant to determining international protection status. These observations include the fact that Eritrea does not accept forced returns of asylum seekers, and the requirement of exit visas make lawful exit difficult. Moreover, punishments for military draft evasion are inconsistent, ranging from military deployment to prison sentences, and even torture.

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NGOs


Global Detention Project: In depth report on Immigration Detention in Greece  

On 1 October 2019, Global Detention Project published its country report on immigration detention in Greece. The report is divided into two substantive sections. The first outlines legislation, policies, and practices in Greek immigration detention procedures. The second section provides an overview of the country’s detention infrastructure.

The report identifies a number of key findings concerning legal practices and the material conditions of detention facilities. These findings show: the State is ill-equipped to address the number of arrivals; unaccompanied children are frequently detained; the use of police and border guard stations for prolonged immigration detention is unsuitable; and non-custodial alternative measures are rarely applied.

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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 (jzelvenska@ecre.org).






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