ELENA Weekly Legal Update (EWLU)

21 June 2019


European Court of Human Rights European Union National Developments NGOs ECRE

European Court of Human Rights

Cases communicated against Switzerland, France and Russia 

The following cases have been communicated by the European Court of Human Rights (ECtHR) against Switzerland, Germany and Russia.

  • Villalobos v. Switzerland (Application no. 77220/16): The applicant, a Chilean national resident in Switzerland since birth, received a removal order following several criminal convictions in Switzerland. The applicant complains under Article 8 of the Convention that his removal would violate his right to respect for private and family life.
  • K.I. v. France (Application no. 5560/19): The applicant is a Russian national whose refugee status was revoked following criminal convictions on terrorism related grounds. The applicant complains that his removal to Russia would result in treatment that would violate his rights under Articles 2 and 3 of the Convention.
  • Batenkov v. Russia (Application no. 51160/18): The applicant is a Stateless national, who was convicted in 2015 for crimes considered to be serious and was issued with an exclusion ban of unlimited duration. The applicant remains in Russia, without a residence permit, preventing him from accessing employment and providing for his family. The applicant complains under Article 8 of the Convention that the unlimited duration of the exclusion order is unlawful and arbitrary, and violates his right to respect for family life.
  • Akmalov v. Russia (Application no. 29255/18): The applicant, an Uzbekistani national, was a PhD student in Russia. In 2015, when he returned to Russia from Uzbekistan to take his exams, the applicant was refused leave to land on foot of an exclusion order issued against the applicant in July 2015. The applicant complains under Article 8 that the exclusion order was unlawful, violated his right to respect for private life, and that the domestic courts failed to properly examine the issue.

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European Union

CJEU: Preliminary References requested on the Asylum Procedures Directive and the Qualifications Directive from Hungary, Germany and the United Kingdom

Asylum Procedures Directive 2013/32/EU (rAPD)

C-210/19 TN v Bevándorlási és Menekültügyi Hivatal (Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary), lodged on 6 March 2019) regarding content of judicial protection in asylum procedures.

  • Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/32/EU of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?
  • Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/32/EU of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?

Qualification Directive 2011/95/EU (rQD)

C-238/19 EZ v Federal Republic of Germany (Request for a preliminary ruling from the Verwaltungsgericht Hannover (Germany), lodged on 20 March 2019) regarding conscientious objection as grounds for international protection.

  • Is Article 9(2)(e) of Directive 2011/95/EU to be interpreted as meaning that a ‘refusal to perform military service in a conflict’ does not require the person concerned to have refused to perform military service in a formalised refusal procedure, where the law of the country of origin does not provide for a right to refuse to perform military service?
  • If Question 1 is to be answered in the affirmative:
    • By the reference to ‘refusal to perform military service in a conflict’, does Article 9(2)(e) of Directive 2011/95/EU also protect persons who, after the deferment of military service has expired, do not make themselves available to the military administration of the State of origin and evade compulsory conscription by fleeing?
  • If Question 2 is to be answered in the affirmative:
    • Is Article 9(2)(e) of Directive 2011/95/EU to be interpreted as meaning that, for a conscript who does not know what his future field of military operation will be, the performance of military service would, directly or indirectly, include ‘crimes or acts falling within the grounds for exclusion as set out in Article 12(2)’ solely because the armed forces of his State of origin repeatedly and systematically commit such crimes or acts using conscripts?
  • Is Article 9(3) of Directive 2011/95/EU to be interpreted as meaning that, in accordance with Article 2(d), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in Article 9(1) and (2) of Directive 2011/95/EU or the absence of protection against such acts, even in the event of persecution under Article 9(2)(e) of Directive 2011/95/EU?
  • In the event that Question 4 is to be answered in the affirmative, is the connection, within the meaning of Article 9(3) in conjunction with Article 2(d) of Directive 2011/95/EU, between persecution by virtue of prosecution or punishment for refusal to perform military service and the reason for persecution already established in the case where prosecution or punishment is triggered by refusal?

C-255/19 - Secretary of State for the Home Department v O.A. (Reference for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom), lodged on 26 March 2019) regarding protection from non-state actors in country of origin.

  • Is ‘protection of the country of nationality’ within the meaning of Article 11(l)(e) and Article 2(e) of the Qualification Directive to be understood as state protection?
  • In deciding the issue of whether there is a well-founded fear of being persecuted within the meaning of Article 2(e) of the QD and the issue of whether there is protection available against such persecution, pursuant to Article 7 QD, is the ‘protection test’ or ‘protection inquiry’ to be applied to both issues and, if so, is it governed by the same criteria in each case?
  • Leaving to one side the applicability of protection by non-State actors under Article 7(l)(b), and assuming the answer to question (1) above is yes, is the effectiveness or availability of protection to be assessed solely by reference to the protective acts/functions of state actors or can regard be had to the protective acts/functions performed by private (civil society) actors such as families and/or clans?
  • Are (as is assumed in questions (2) and (3)) the criteria governing the ‘protection inquiry’ that has to be conducted when considering cessation in the context of Article 11(l)(e), the same as those to be applied in the Article 7 context?

National Developments

Italy: Court of Trapani rules that those rescued on Vos Thalassa acted in self-defence in opposing Libyan orders to disembark 

On May 23, 2019, the judge for Preliminary Investigations of the Court of Trapani acquitted two individuals who were rescued by the tugboat Vos Thalassa, along with 65 others, in the Sicilian Channel in July 2018. The two applicants were arrested upon disembarkation in Italy, accused of having led a revolt against the crew to prevent their return to Libya and for aiding illegal immigration.

The judge held that while the facts of the case are well established, it is important to analyse if there was a justification for the actions of the accused. In this case, the judge considered that their actions were legitimate in that they were acts of self-defence.

The judge assessed the international rules and norms related to Search and Rescue operations. He recalled that under the International Convention on Maritime Search and Rescue (the SAR Convention), those rescued during a search and rescue operation should be taken to a safe place where, in addition to providing protection of physical integrity and human dignity, the possibility of asserting fundamental rights is guaranteed, starting with the request for international protection. He held that it is hard to argue that in the summer of 2018, to when the facts of the case date back, Libya could have been considered a safe place in accordance with the SAR Convention. The judge emphasised that the situation in Libya is characterised by serious and systematic violations of human rights and that Libya has not ratified the 1951 Refugee Convention. He also held that Libya did not meet the requirements laid down in Article 6.12 of the UNHCR Guidelines on the Treatment of Persons Rescued at Sea regarding a place of safety.

Concerning the principle of non-refoulement, the judge extensively cites international law. Particular reference is made to Article 3 of the European Convention on Human Rights, as interpreted by ECtHR case law, under which states cannot return individuals to a state where there is a real and concrete risk of an individual being subject to inhuman or degrading treatment. The judge also refers to Articles 4 and 19 of the Charter of Fundamental Rights of the EU, which prohibit in an absolute and imperative manner, the return to a country where the individual faces a risk of torture.

Concerning the bilateral agreement between Italy and Libya, the judge held that the agreement was made between the Prime Minister of Italy and the Head of the Libyan Government of National Accord without prior authorisation from the Parliament. As a result, the judge stated that the agreement cannot be recognised to have legal effects and is therefore not binding.

Finally, the judge cites UNHCR reports to describe the conditions for migrants in Libya, in particular current living conditions, torture, lack of food and education. He concluded that returning individuals to such conditions would be a grave violation of their fundamental rights.

In light of the above, the judge recognized that the offences of the two applicants had not been disproportionate in the context of the circumstances of the case. Given that the fundamental rights of the applicants were at stake, including their right to life and to not be exposed to inhuman or degrading treatment or torture, and that the right to self-determination of the crew was expendable, he acquitted the two applicants.

Based on an unofficial translation by the EWLU team. EWLU would like to thank Sofia Bonatti, Senior Legal Officer at ECRE for her assistance with summarizing this case.

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The United Kingdom: High Court finds Home Secretary’s investigation into immigration detention inadequate

On 14 June 2019, the High Court published a judgment in the case of M.A. and B.B. v. The Secretary of State for the Home Department regarding requirements and standards of investigation into immigration detention in Brook House Immigration Removal Centre.

The applicants, M.A. and B.B were detained in Brook House for two months and seven months, respectively. M.A. arrived to the UK as an unaccompanied child seeking asylum. He was detained following a suspended sentence; while in remand it was noted that he had a history of self-harm and mental illness and in detention, he attempted suicide. B.B. was detained following the revocation of his refugee status and the issuance of a deportation order. While in detention, it was recorded that B.B. had mental health issues and was taking medication.

The judge first detailed the conditions of detention and misconduct of staff, including G4S security staff, in Brook House as brought to light in a 2017 BBC ‘Panorama’ programme that revealed widespread physical and verbal abuse committed by staff against those detained. Both applicants allege that the abuse they were subject to amount to inhuman and degrading treatment and/or punishment/torture, in breach of Article 3 of the European Convention of Human Rights.

The Court recognised the positive obligation to investigate breaches of Article 3. At issue in the instant proceedings was the scope and powers of the Prisons and Probation (PPO) Special Investigation. The claimants contend that an effective investigation discharging the Article 3 duty cannot be achieved unless the PPO has broad powers from the outset.

Recognising the claimants’ submission, the judge first held that an effective enquiry should have the power to compel the attendance of witnesses. She held that this was necessary due to the egregious nature of the breaches, the multiplicity and frequency of abuse and the openness of the activity, along with very good reason to believe the perpetrators and other G4S staff will not voluntarily attend to give evidence.

She held that it was right to afford the abused detainees an opportunity to see and confront their abusers on equal terms, as a means of restoring dignity and respect and as an important psychological restorative. She held that despite there having been previous investigations, the full extent of the discreditable behaviour had not been exposed to public view. To that end, she recommended public hearings to ensure sufficient accountability, allay suspicions of state tolerance of the mistreatment of the weak, and ultimately maintain public confidence in the rule of law. She recognised the hostile political and media rhetoric towards refugees and migrants and held that it is important to publicly vindicate the detainees’ rights. Finally, with reference to ECtHR case law, the Court recognised the importance of victim involvement and representation.

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Spain: Supreme Court rules in favour of extending temporary residence permits for longer than one year 

On 27 May 2019, the Administrative Chamber of the Supreme Court of Spain ruled on the extension of temporary residence permits issued to individuals on exceptional grounds for longer than one-year periods.

The case concerns a third-country national who is the father of a Spanish national child and who obtained his initial temporary residence permit on the exceptional ground of being settled in Spain with his family (‘arraigo familiar’). The Government Sub-delegation of Alicante denied the extension of his permit stating that the extension was not possible under the Regulation of the Law on Foreigners 4/2000. This decision was confirmed by the Administrative Court of Alicante and the Superior Court of Valencia, which rejected the applicant's appeal.

In examining the case, the Supreme Court observed that Paragraph 1 of Article 130 of the Regulation of the Law on Foreigners 4/2000, which regulates the extension and cessation of temporary residence permits for exceptional circumstances, is a vague rule that has led to a disparity in how it is applied. In this regard, the Court acknowledged that the permits are issued on exceptional grounds and held that its validity period cannot be other than that in which the situation of exceptionality persists. It noted that the reason why the Regulation establishes a period of authorisation and extension is to ensure that the temporary authorisation does not extend beyond that necessary to deal with the exceptionality.

In the instant case, the applicant was granted a temporary residence permit on the grounds of being the parent to a Spanish national child. Given that the applicant remains the legal guardian of the child and is fulfilling his obligations as a parent or living with him, it found that it cannot be held that the permit cannot be extended after one year of permit period. The Court further found that the refusal to renew the permit violates the legal protection of the child under national and EU law.

The Court annulled the previous decisions to refuse a renewal and held that the request for renewal be re-examined and granted if the circumstances at the time of issuing the initial temporary residence permit remained applicable.

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Refugee Support Aegean: Report on Reception Conditions in Greece

In a new report from Refugee Support Aegean (RSA) and Pro Asyl, “Structural Failure: Why Greece’s reception system failed to provide sustainable solutions”, the organisations contend that the high-cost and emergency-oriented approach of Greek authorities in implementing EU funding has resulted in the continued inadequacy of reception conditions.

The report examines the use of EU funds, as allocated to Greece under the National Programmes of the Asylum Migration and Integration Fund (AMIF) and the International Security Fund (ISF). It assess the ‘PHILOS’ project, the national medical response project initiated in 2015, showing how the ineffective implementation of funding, including in the hiring of staff by the Hellenic Centre for Disease Control and Prevention (KEELPNO), severely impacted on access to medical care and derailed vulnerability assessments, particularly on the Eastern Aegean islands.

The report also examines the recently implemented short-term ‘FILOZENIA’ (Temporary Shelter and Protection for the Most Vulnerable Migrants in Greece), introduced for the winter of 2018-19 to transfer vulnerable asylum applicants out of the EU Hotspots on the islands. It demonstrates how this short-term emergency solution is an example of how the failure of Greek authorities to implement sustainable solutions from 2015 onwards is continuing to impact the asylum system today. 

RSA and ProAsyl warn that Greece will continue to approach asylum in a piecemeal and emergency-oriented manner at a high cost if the authorities do not recognize existing structural deficiencies and push for an overhaul the current reception system.

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Thank you to Marina Gómez Hernández

ECRE/ELENA would like to express our appreciation to Marina Gómez Hernández for her important contribution to the ELENA Weekly Legal update and the work of ECRE and ELENA over the past months. Marina has contributed her energy and time to support the ELENA network, EDAL database and legal training run by ECRE. Her efficiency, legal research and social media skills were appreciated by many users of the EDAL database and the ELENA lawyers.

Marina will be greatly missed and we wish her the best of luck in her future endeavours, and hope that she continues her engagement with the ELENA network.

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Legal Assistant Vacancies

ECRE is offering two 6-month legal internships: August 2019 – January 2020. The purpose of these positions is to assist ECRE’s Legal Support and Litigation Team with legal training, legal research on specific topics relating to international protection, managing the ELENA Weekly Legal Update and administrative tasks related to the ELENA network.
Candidates should send a copy of their curriculum vitae (2 pages maximum) and an application form to Julia Zelvenska ( by 17 pm CET on 1 July 2019 stating “Application Legal Assistant” in the subject heading.

Please find more information here.

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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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