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ELENA Weekly Legal Update - 18 December 2015

18 December 2015

The ELENA Weekly Legal Update will be taking a break and will resume on the week commencing 4 January 2016. Season’s greetings to all our subscribers!

Summary


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

European Court of Human Rights


ECtHR: V.M. and Others v. Belgium (no. 60125/11), referral to Grand Chamber

The Grand Chamber panel of five judges decided on 14 December 2015 to accept the request of the Belgian government to refer the case of V.M. and Others v. Belgium to the Grand Chamber.  

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European Union


CJEU: Case C-239/14 Abdoulaye Amadou Tall, 17 December 2015

This case relates to a national of Senegal, Mr Tall, who made a subsequent application for asylum following the rejection of his first claim by the Belgian authorities and courts. The Commissariat-General for Refugees and Stateless Persons refused to take this second application into account. This led to CPAS withdrawing social assistance to Mr Tall. He was later served with an order to leave the territory.

He appealed to CALL against the decision refusing to consider his second application for asylum. At the same time he challenged the decision of CPAS (public social service centre) to withdraw his social assistance before the Labour Court of Liege. The Labour Court found that the only remedy under national law against a decision refusing to take into account a subsequent application was an appeal seeking annulment and suspension under the extreme urgency procedure. It stayed proceedings and requested a preliminary ruling from the CJEU on the issue of whether this was compatible with the right to an effective remedy as contained in Article 39 of the Asylum Procedures Directive (APD), and Article 47 of the EU Charter, given that in such an appeal there was not full jurisdiction to determine issues of fact and law, the appeal was not suspensory and the applicant had no right of residence or material assistance while it was being considered.

The CJEU first considered the admissibility of the question referred, as since the referral, there had been amendments to domestic law, with transitional provisions which meant that Mr Tall’s appeal had suspensory effect and he was entitled to material assistance during its examination. It considered that it was bound to give a ruling in Article 267 TFEU proceedings and that the matter was admissible as the interpretation of EU law sought was still relevant to resolving the dispute, especially as the CJEU had no jurisdiction to give a ruling in relation to the effect of the new domestic provisions.

The CJEU examined the relevant provisions of the APD, noting that Article 39(1)c) obliged Member States to ensure that asylum applicants have the right to an effective remedy before a court or tribunal against a decision not to further examine a subsequent application. In this case, a decision had been made not to further examine Mr Tall’s subsequent application, following a preliminary examination as provided for in article 32(3). In such situations, Article 7(2) set out an exception to the obligation to permit asylum applicants to remain in the Member State pending examination of the application. As such it was open to Member States to provide that an appeal against such a decision is devoid of suspensory effect. In contrast, an appeal must have suspensory effect if brought against a return decision which if enforced, could expose the person concerned to a serious risk of being subjected to inhuman or degrading treatment, in view of the requirements of Article 19(2) CFEU, Article 47 CFEU, Article 13 ECHR, and case law from the European courts. This was not at issue in the present proceedings and as such the CJEU concluded that Article 39 APD did not preclude national legislation that did not confer suspensory effect on an appeal brought against a decision such as the one at issue in the main proceedings. 

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CJEU: hearing in connected cases of C-63/15 Ghezelbash and C-155/15 Karim, 15 December 2015

On 15 December 2015 the Grand Chamber of the CJEU held a hearing on the connected cases of C-63/15 Ghezelbash and C-155/15 Karim, which both relate to the scope of the right to an effective remedy in the Dublin III regulation. The oral submissions by counsel for Ghezelbash are available here. The opinion of Advocate-General Sharpston is due on 17 March 2015. 

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Council of Europe


Commissioner for Human Rights: visit to Cyprus

Following a 5 day visit to Cyprus, Nils Muižnieks raised concerns regarding ‘grave shortcomings of the national asylum system’. These relate in particular to reception conditions for asylum seekers and asylum procedures, which are characterised by lack of legal assistance and excessive length. He also called on the Cypriot authorities to use alternatives to detention rather to avoid excessively long detention of asylum seekers and migrants pending deportation.

For further information on the asylum system in Cyprus, please see the updated AIDA country report on Cyprus, up to date as of 27 November 2015.

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United Nations


Committee against Torture: Concluding observations on Austria 

In its concluding observations on Austria, UNCAT raised concerns over reports of poor living conditions and overcrowding in some transit reception facilities for asylum seekers, especially at the Traiskirchen centre during summer 2015. It called on the authorities to ensure appropriate reception conditions for asylum seekers and refugees and for a reinforcement of the capacity to process applications, in view of the increasing number of applications. It also recommended that Austria formulate clear guidelines and training on identifying victims of torture among asylum seekers. In addition it reiterated that detention of asylum seekers should be a last resort, with the use of alternatives where feasible. 

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National Developments


Norway: amendments to the Asylum law 

The Norwegian government has made restrictive amendments to the law of 15 May 2008 on the entry of foreign nationals into the Kingdom of Norway and their stay in the realm (Immigration Act), some of which are set out below.
 
Amendments to ‘safe third country’ provisions mean that persons who have a residence permit in a country where they do not fear persecution will not qualify for legal aid. It is no longer necessary that this country will examine their asylum claim, prior to the rejection of these applications in Norway. This will also apply to those who already have been granted protection in other EU or Schengen states. Applicants deemed to come from a ‘safe third country’ will as a general rule, be detained. These changes mean that asylum applications from people in this category will not be considered substantively on their merits, effectively being deemed inadmissible. There is no right to appeal against this decision. For example, asylum applicants arriving in Norway from Russia will not be able to see a lawyer and will usually be detained and speedily returned under the Norwegian-Russian readmission agreement.
  
In addition, the Ministry of Justice and Public Security now has a more general power to instruct the Immigration Appeals Board. Prior to the changes it could only do so in limited circumstances, relating to legislation, regulation, budget and general priorities. Now, although this power does not relate to individual cases, it can give instructions on the interpretation of law, the interpretation of country of origin information and the use of administrative discretion (e.g. to grant a residence permit on humanitarian grounds).
 
The full provisions can be accessed here, in Norwegian.
 
The ELENA Weekly Legal Update would like to thank Halvor Frihagen, ELENA national coordinator in Norway, for providing us with this information. 

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NGOs


ECRE: Updated AIDA Country report on France

The updated AIDA report on France documents new rules brought about by a substantial reform of the asylum system adopted in July 2015. The reform has introduced the “single desk” (guichet unique) where the Prefecture and the French Office on Immigration and Integration (OFII) both have offices. The aim of the single desk, operating since November 2015, is to register the asylum claim and, on the same day and in the same location, to conduct a vulnerability assessment that allows the OFII to offer tailored material reception conditions. The assessment of vulnerabilities and their consideration throughout the asylum procedure is a completely new element that has been brought in by the asylum reform. Moreover, the obligation to have an address (domiciliation) is not required anymore for lodging an asylum claim.

A claim can be channelled under accelerated procedures for 10 different grounds, among which 3 are applicable to unaccompanied minors. OFPRA can decide not to process a claim under accelerated procedure if the person’s vulnerability so requires. Appeals before the National Court on the Right to Asylum (CNDA) under the accelerated procedure now also have suspensive effect. The CNDA must give a decision on the case within 5 months under regular procedures and within 5 weeks under accelerated procedures. The latter is given by a single judge.

The national reception scheme has been completely changed with the reform. From now on, the entire system is centralised and managed by OFII that has the full competence to grant, suspend, refuse or withdraw material conditions. Asylum seekers can be offered a place in any reception centre in France. They can be accommodated either in a reception centre for asylum seekers (CADA) or in an emergency reception centre, even if they are under an accelerated procedure. However, seekers under Dublin procedure are still eligible only to the emergency reception scheme.

Moreover, the former temporary waiting allowance (ATA) and monthly subsistence allowance (AMS) have not been replaced by the allowance for asylum seekers (ADA). ADA is calculated on the basis of the family composition, age and resources of the asylum seeker. All asylum seekers, including under Dublin or accelerated procedure, can benefit from this allowance. Asylum seekers also have the right to access the labour market to work if OFPRA has not processed their asylum claim within 9 months.

Based on the AIDA news article dated 8 December 2015, 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 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