ELENA Weekly Legal Update (EWLU)

3 February 2017


European Union Council of Europe United Nations National Developments NGOs

European Union

CJEU: Case C-573/14 Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani

On 31 January 2017, the Court of Justice of the European Union (CJEU) delivered its judgment in the case Commissaire général aux réfugiés et aux apatrides v. Mostafa Lounani.
The case concerns a Moroccan national whose application for international protection was rejected by the Belgian Commissioner General for Refugees and Stateless Persons as he was convicted of participating in a terrorist group – the Moroccan Islamist Combatant Group. The acts committed included inter alia ‘providing logistical support to a terrorist group by the provision of, inter alia, material resources or information’ and ‘active participation in the organisation of a network for sending volunteers to Iraq’.
The Council of State referred a request for preliminary ruling to the CJEU on the basis of the scope of the exclusion clauses in the Qualification Directive and the Refugee Convention to include these terrorist-related acts other than acts of terrorism.
The CJEU held that ‘acts contrary to the purposes and principles of the United Nations’, as provided for in Article 1F(c) of the Geneva Convention and in Article 12(2)(c) of Qualification Directive cannot be limited to the acts set out in Security Council Resolutions. Article 1 of the Council Framework Decision 2002/475 contains four subsets of terrorist offensives, only subset 1 of which relates to acts of terrorism. The Court held that Article 12(2)(c) and Article 1F(c) could not be limited to Article 1(1) of the Framework Directive. Furthermore the Court held that the provisions were in existence at the time the Qualification Directive was drafted and if the legislators had wanted to restrict the scope of Article 12(2)(c) to Article 1(1) of the Framework Directive, then they could have done so.
The scope of the exclusion clauses cannot be confined to acts of terrorism but must also extend to the ‘recruitment, organisation, transportation or equipment of individuals who travel to a State other than their States of residence or nationality for the purpose of, inter alia, the perpetration, planning or preparation of terrorist acts.’
The Court reiterated the test for an individual assessment as laid down in B & D. The decision as to whether conduct falls within the scope of Article 12 of the Qualification Directive is that of the national authorities and courts. However, of importance to the individual assessment of whether there are serious reasons for considering that a person has committed acts contrary to the purpose and principles of the UN by the national authority is whether such a person ‘has instigated such acts or has otherwise participated in such acts, the fact that the person was convicted by the courts of a Member State on a charge of participation in the activities of a terrorist group is of particular importance, as is a finding that that person was a member of the leadership of that group, and there is no need to establish that that person himself or herself instigated a terrorist act or otherwise participated in it.’
For more information see a new EDAL blog on Exclusion Clauses and Terrorism under EU Law and EDAL case summary.

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Council of Europe

Parliamentary Assembly adopts resolution on the need to reform European migration policies

On 26 January 2017, the Parliamentary Assembly has adopted a resolution on the need to reform European migration policies. In the resolution, the Parliamentary Assembly expresses its concerns with regard to the failure of European leaders to find a common policy approach and effectively address the ongoing migration and refugee crisis, including the continuing loss of lives in the Mediterranean Sea, inadequate reception conditions, responsibility sharing between States with regard to mass inflows of people, violence at the borders and against migrants, and the ensuing loss of public confidence in governments and European institutions to deal with the crisis.

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United Nations

UN Human Rights Committee finds deportation of a Syrian family from Denmark to Bulgaria to be a violation of Article 7 CCPR

In case R.A.A. and Z.M. v. Denmark (Communication No. 2608/2015) of 15 December 2016, the UN Human Rights Committee has found the deportation of a Syrian family from Denmark to Bulgaria as first country of asylum to be a violation of Article 7 CCPR.
The case concerns a couple that was beaten and detained by Bulgarian police upon arrival in Bulgaria. Once released, they were sent to a reception facility. The male author suffered from a serious heart condition and collapsed at the reception center, but was only offered painkillers, and was rejected by the local hospital. Moreover, he also faced a racist attack on his way back to the reception facility, and was denied access to the police station when he wanted to report the incident. The couple was discharged from the reception center once they were granted refugee status. They lived on the street for a few days, before they managed to get back to the center, where they lived in hiding with friends. The couple then went to Denmark, where they applied for asylum. However, the Danish Immigration Service rejected the applicants’ asylum claims, as they had been granted protection in Bulgaria.
The Committee notes the applicants’ claim that deporting them and their baby to Bulgaria, based on the Dublin Regulation principle of “first country of asylum”, would expose them to a risk of irreparable harm, in violation of article 7 CCPR. Despite being granted residence permit in Bulgaria, they faced intolerable living conditions there. According to the Committee, Denmark did not take this information adequately into consideration. Denmark had not explained how, in case of return to Bulgaria, the residence permit would protect them, in particular as regards access to medical treatment for the male applicant, and from hardship and destitution they already experienced, and which would now also affect their baby.
The ELENA Weekly Legal Update would like to thank Dorte Smed for bringing this to our attention.

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National Developments

Ireland: Balance of probabilities coupled with benefit of the doubt constitute the correct standard of proof for credibility assessments

In a judgment delivered in O.N. & I.N. v. Refugee Appeals Tribunal on 17th January 2017 by O’Regan J. of the Irish High Court, it was held that the correct standard of proof to be used in assessing credibility of an asylum seeker in relation to events that have taken place in the past is that of the balance of probabilities. This is the civil burden of proof in common law countries and means that something has more than a fifty percent chance of occurring. The judge also included in that the use of the benefit of the doubt.
This affirms the distinction between future risk and past persecution in terms of the standard of proof applied. O’Regan J. noted that there is no universally accepted standard, but that there is no standard set at Irish law or in the 2004 Qualification Directive. The standard of the balance of probabilities for past events is used in the UK and Canada and UNHCR have also expressed support for it, coupled with, where appropriate, the benefit of the doubt. It was also noted that the US uses a much lower standard of proof.

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The Netherlands: Western lifestyle of a woman from Herat (Afghanistan) falls under the persecution grounds of religion and political opinion of the Refugee Convention

On 18 January 2017, the Court of The Hague has judged that the Western lifestyle of a woman from Herat (Afghanistan) falls under the persecution grounds of religion and political opinion of the Refugee Convention.
The case concerns a mother and her adult daughter whose residence permits were withdrawn since they could not be considered as single women any longer, after the father of the family had arrived in the Netherlands. The daughter claims that she risks persecution in Afghanistan since she does not wear a burqa in the Netherlands (and believes that Islam does not prescribe this), goes out without male accompaniment and follows an education. In the future she wants to live on her own and work as a manager in a clothing store. She wants to continue this lifestyle after returning to Herat.
The Court of The Hague rules that the position of women in Afghanistan, including the few freedoms granted to them and the way they are expected to behave, is dictated by the dominant interpretation of Islam in Afghanistan and that a women with a Western lifestyle is seen as an apostate in Herat. Since a woman with such a lifestyle runs a great risk to be killed, abused or raped in Herat, she risks persecution for reasons of religion, according to the court.

Furthermore, the court rules that there is persecution for reasons of political opinion where a woman is persecuted in her country of origin for violating social customs, religious precepts or cultural norms that are discriminatory for women. It follows from cases Y and Z and X, Y and Z of the CJEU that a person should be granted refugee status in accordance with Article 13 of the Qualification Directive if it is established that a person runs a real risk of persecution upon return to their country of origin on one of the grounds mentioned in the Refugee Convention. The fact that the person can avoid the risk by refraining from certain acts, is in principle irrelevant. The adult daughter can therefore not be required to adapt to the standards applicable to women in Afghanistan. The Secretary of State also insufficiently substantiated that the applicant had no Western lifestyle.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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Pushed Back at the Door: Denial of Access to Asylum in Eastern EU Member States (Bulgarian Helsinki Committee, Organization for Aid to Refugees, Hungarian Helsinki Committee, Helsinki Foundation for Human Rights, Legal-informational Centre for NGOs)

In their report “Pushed Back at the Door: Denial of Access to Asylum in Eastern EU Member States” five human rights NGOs show that access to protection is increasingly limited in Bulgaria, the Czech Republic, Hungary, Poland and Slovenia. The NGOs urge European governments to find the right balance between protecting borders and providing access to protection to those in need of it.
The report calls on the governments to introduce effective and transparent border control mechanisms facilitating access to the territory and the asylum procedures for those in need of international protection. It highlights a need for an efficient and independent border monitoring and training of staff involved. Furthermore, the report urges Member States to guarantee access to the border check-points, transit zones, short-term holding border facilities and other relevant sites to those conducting such monitoring and providing legal assistance.

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Report on the state of closed detention centres in Belgium (Vluchtelingenwerk Vlaanderen, Caritas international, CIRÉ, Ligue des droits de l’Homme and MRAX)

On 23 January 2017 several Belgian human rights organisations released a report on the state of closed centres for administrative detention in Belgium. A large section of the report is devoted to the detention of asylum seekers, which is provided for in the recast Asylum Procedure Directive, the recast Reception Conditions Directive and the Dublin III Regulation.
Even though the transposition deadline lapsed on 20 June 2015, the Belgian provisions still do not respect the requirements laid down in the Dublin III Regulation, which is reflected in the practice of administrative detention. The report states that one third of the detained persons are asylum seekers and detention is systematically applied in the border procedure. This occurs despite criticism from both Belgian courts and the Council of Europe Commissioner for Human Rights, Nils Muižnieks. In addition to this, administrative detention is also systematically applied for Dublin returns, with detention decisions ignoring the proportionality requirement and basing decisions on a “risk of absconding” of asylum seekers even though they present themselves voluntarily at the Aliens Office.
The report ends with a set of recommendations asking the Belgian authorities to limit the use of detention in the name of law, human dignity and democracy. These recommendations include a prohibition on detention of asylum seekers and especially children, but also limiting detention to an absolute minimum, accessible legal aid and legally binding criteria for the use of the public order justification as grounds for detention.
Based on the AIDA article dated 25 January 2017, available 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 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 Julia Zelvenska (

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

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