ELENA Weekly Legal Update - 18 September 2015
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18 September 2015


European Union

European Union


Justice and Home Affairs Council: Outcome of extraordinary meeting on 14 September

The Justice and Home Affairs Council adopted a decision  on 14 September 2015 to establish provisional measures to relocate 40,000 asylum seekers from Italy and Greece. The measures are summarised here and apply to those who have arrived or are arriving in Italy or Greece from 15 August 2015.
The Council also agreed in its conclusions to strengthen and develop Frontex, and to immediately deploy extra teams to reinforce the response capacity at the external borders to the EU and to support the abilities of Western Balkan countries to manage their borders and cope with incoming migratory flows.
It found that conditions were positive to transition EUNAVFOR Med from its first phase of intelligence gathering, to its second phase. This means that it can now conduct operations to board, search, seize and divert vessels on the high seas, suspected of being used for human smuggling or trafficking.
The Council also agreed ‘in principle’ to relocate an additional 120,000 persons in need of international protection from any Member States exposed to massive migratory flows, with a formal decision to be prepared for adoption at the next meeting on 8 October. In a fast-track vote, the European Parliament approved these plans on 17 September.
At the same meeting the Council agreed to take measures to fully implement the Return Directive, and to place information on return decisions and re-entry bans in the Schengen Information System, welcoming the European Commission’s Action Plan on Return and Returns Handbook. 

Council of Europe


ECtHR Grand Chamber: Referral accepted Khan v. Germany (no. 38030/12) 

On 14 September 2015, the ECtHR decided to refer this case to the Grand Chamber, in which the applicant challenges her expulsion to Pakistan on the basis of Article 8 ECHR.
The applicant is a Pakistani national who received a temporary residence permit in Germany in 1994 as the spouse of a refugee. She gave birth to a son, but later separated from her husband. She was granted permanent residency in 2001. In 2004, she killed a neighbour by strangling her and pushing her down a staircase in 2004. The Giessen Regional Court established in 2005 that she had committed manslaughter in a state of mental incapacity as she was suffering from psychosis at the time of the act. She was ordered to stay in a psychiatric hospital and appointed a legal guardian. She was released into sheltered accommodation on probation in 2011.
An order was made for her expulsion on the basis of her serious offence, her risk of reoffending, and her lack of integration into German society, noting that she could obtain adequate medical treatment in Pakistan. Her appeals against her expulsion order were dismissed. She complained to the ECtHR that her expulsion to Pakistan would violate Article 8 ECHR by having a severely damaging effect on her private and family life, and as the withdrawal of social and medical services would lead to a deterioration of her mental state. She claimed that expulsion was a disproportionate measure given that she was mentally incapacitated at the time of her criminal act, and her mental state had now improved. She claimed that she was well-integrated into Germany and that she would not receive adequate medical treatment in Pakistan.
The Court considered that damage to her mental health in Pakistan was speculative. Although expulsion would interfere with her Article 8 rights, the domestic courts had adequately assessed all relevant factors and the weight to be given was within its margin of appreciation. Her son was now an adult and there were no elements of dependence above normal bonds of affection between them. She could obtain medical care in Pakistan, and although she would face a difficult environment there, this did not create an overwhelming obstacle to return. As such the Germany authorities did not fail to strike a fair balance between the applicant’s personal interests and the preservation of public safety, a legitimate aim it pursued. 

Human Rights Education for Legal Professionals (HELP): New e-learning courses

The European Programme for Human Rights Education for Legal Professionals (the HELP Programme) which supports Council of Europe member states in implementing the ECHR at the national level, has released three new e-learning courses for self-completion, available for free upon registration. The courses relate to ‘Admissibility criteria in applications submitted before the ECtHR’, ‘Asylum and the ECHR’, developed with UNHCR, and an ‘Introduction to ECHR’. 

National Developments

Austria: Statutory presumption that Hungary is safe for asylum seekers rebutted in an individual case

The Federal Administrative High Court of Austria  (VwGH), which is Austria’s Supreme Court in administrative matters, ruled on 8 September 2015 (Ra 2015/18/0113) that the legal presumption that Hungary is safe for asylum seekers does not exist for this specific case. The case relates to a single female Afghan asylum seeker who had five minor children and suffered from depression. Two of the minor applicants also suffered from medical conditions (insomnia, tremors, nephrothiliasis, and pain in one leg). They had applied for asylum in Hungary in September 2014 and subsequently claimed asylum in Austria without having awaited the outcome of their asylum procedure in Hungary. The Austrian Federal Office for Immigration and Asylum rejected their claim as inadmissible and ordered their transfer to Hungary under the Dublin III Regulation. The Hungarian Dublin Unit had responded positively to the ‘take back’ request by the Austrian authorities.

Upon appeal, the Federal Administrative Court (BVwG) found that deportation to Hungary would not create a real risk of Article 3 violation, on the basis that returnees under the Dublin Regulation would not face bad reception conditions since they would be brought to the overcrowded reception centres, it was not sufficiently proven that the applicants would face mistreatment again upon return, the applicants would not suffer from medical conditions reaching the threshold of Article 3 ECHR and sufficient medical care was available. Relying on the ECtHR decision of Mohammadi v Austria and country reports dating until summer 2014 (except for reports concerning detention which ware dated March 2015), it considered there were no systematic shortcomings of the Hungarian asylum system.

Permission to appeal to the VwGH was extraordinarily granted. The applicants argued that the Austrian authorities should have made use of Art 17(1) of the Dublin III Regulation because of the risk of a violation of Article 3 ECHR, and the presumption of Member States being safe was a rebuttable one. They had put forward substantiated claims concerning deficiencies in Hungary, which they themselves had experienced and which were confirmed by recent reports. Since they were a particularly vulnerable group of five minor children they were in danger of destitution, ending up on the street with no meals, shelter, or medical care and could even be liable to detention upon return to Hungary as Dublin returnees on return to Hungary.
The Court cited a decision of the Administrative Court of Berlin in January 2015 which stated that the Hungarian asylum procedure was suffering from systemic deficiencies. It also considered the findings of EASO on the reception capacity of Hungary and problems caused by the significant increase in asylum applications, as well as the request by the Hungarian Dublin Unit dated 29 May 2015 that Dublin transfers to Hungary should stop as it was at full capacity.

In light of the ECtHR ruling in Tarakhel v. Switzerland  it considered that the applicants were particularly vulnerable given the special needs of the minor children, and the illness of their mother. The Federal Administrative High Court concluded that the legal presumption that a Member State is safe was rebutted given the notoriously changed situation in Hungary in conjunction with the substantiated criticism put forward by the applicants. The Federal Administrative Court should have examined the current situation in Hungary based on up to date reports taking into account the latest developments; on this basis the Federal Administrative Court should have assessed whether systematic systemic deficiencies existed and/or if Austria should have made use of Art 17(1) in order to avoid a violation of Art 3 ECHR or Art 4 of the Charter. As such it annulled the contested decisions.
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Kathrin Kessler, ELENA coordinator in Austria, for her assistance with this case summary. 

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Hungary: implementation and analysis of new asylum and criminal laws 

Amendments to Hungary’s asylum and criminal laws, which came into effect on 15 September and are summarised here, have now been implemented by the Hungarian authorities.

The Hungarian Helsinki Committee has published an analysis (in English) of the government’s introduction of new crimes related to crossing the border, tightened rules on smuggling in human beings and rules to expedite criminal procedures for those illegally crossing the fence at the Serbian border. It provides a detailed overview of the new laws, with its analysis showing that several elements of them are in direct violation of international legal obligations and that they will place enormous pressure on the Hungarian criminal justice system. It highlights in particular that Article 31 of the 1951 Convention means that a substantive decision on the asylum claim is a prerequisite for determining culpability of asylum seekers. 

UK: Country Information and Guidance - Afghanistan: Prison Conditions 

The Home Office has published a report to guide its decision-makers on asylum claims based on a fear of being imprisoned in Afghanistan, in conditions so poor to amount to torture or inhuman or degrading treatment or punishment, contrary to Article 3 ECHR. It notes that consideration must be given to whether offences punishable by imprisonment are due to discriminatory laws or are disproportionately applied for a Convention reason, and that Afghanistan retains the death penalty. However, in general, prison conditions would not in themselves violate Article 3. 

United Nations

Human Rights Committee: report on human rights violations in Sri Lanka

The Office of the United Nations High Commissioner for Human Rights (OCHR) has published a report following its investigation into human rights violations in Sri Lanka from 2002 to 2011. The report also considers the situation following the election of a new government in January 2015. A summary is available here, and the full 262 page report is accessible here.

It found reasonable grounds to believe that both the Sri Lankan security forces and the LTTE were implicated in unlawful killings carried out in a widespread manner against civilians, which could amount to war crimes and/or crimes against humanity. It documents patterns of arbitrary arrest and detention, facilitated by extensive powers in the Prevention of Terrorism Act (which is still in force) which often led to enforced disappearances and extrajudicial killings. It found reasonable grounds to believe that acts of torture, including sexual and gender-based violence, were committed on a systematic scale by the Sri Lankan security forces. It also gathered information on the abduction and forced recruitment of both adults and children by the LTTE. It found reasonable grounds to believe in many violations of international humanitarian law, which require further investigation.

In relation to the situation following the election of the new government in January 2015, it notes that the North and East provinces are still militarised, with private land being occupied, jeopardising the livelihoods of displaced populations. People continue to be detained arbitrarily under the Prevention of Terrorism Act with insufficient information on the number and identity of detainees and their places of detention, and many Tamil organisations continue to be proscribed. Torture and sexual violence remain a critical concern, with the NGO Freedom from Torture, documenting cases concerning individuals that had returned after the conflict, some of whom had been refused asylum.

The OCHCR recommends, inter alia, that Member States of the UN ensure a policy of non-refoulement of Tamils who have suffered torture and other human rights violations until guarantees of non-recurrence are sufficient to ensure that they will not be subject to further abuse, in particular torture and sexual violence. 


ECRE: ELENA Publishes 30th Anniversary Celebration Note

ECRE has published a note celebrating the achievements of the European Legal Network on Asylum (ELENA) and asylum practitioners in Europe. The network was created in 1985 and over the past 30 years, its members have had numerous advocacy and litigation successes, which have contributed to better protection for asylum seekers and refugees across Europe in line with international and human rights law. 

ECRE: Op-Ed on detention of refugees in the Czech Republic

Martin Rozumek, Executive Director of Organisation for Aid to Refugees, has written an op-ed for ECRE titled ‘Refugees being treated by criminals in Czech detention centres’. His analysis shows that detention conditions fail to meet international standards; lack of access to legal advice violates the EU Asylum Procedures Directive, Return Directive and Dublin III Regulation; and that detention of asylum seekers and refugees is unlawful in view of Article 5 ECHR and the Dublin Regulation . 

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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