ELENA Weekly Legal Update (EWLU)

23 June 2017


European Court of Human Rights

European Court of Human Rights

S.G. v. Greece (no. 46558/12) [Article 3], 18 May 2017

On 18 May 2017, the ECtHR delivered its ruling in case S.G. v. Greece (no 46558/12), which concerned an Iranian national who arrived in Greece in August 2011, had his asylum application rejected and who was detained pending his transfer to Turkey under the bilateral agreement between the two countries. He appealed against the rejection of his asylum application and was released from detention. He claimed not having obtained a response to his request for social aid before the Ministry of Social Solidarity, which forced him to leave in the streets without access to water, food and sanitation facilities. The applicant complained under Article 3 and 13 ECHR regarding the deficiencies of the asylum procedure in Greece, his living conditions after his release from detention, and the risk of being returned to Turkey and Iran.
With regard to the deficiencies in the Greek asylum procedure, the Court notes that even if there was a small delay in registering the applicant’s asylum claim, this did not have a consequence to the applicant’s situation. Moreover, the applicant did not present himself before the authorities, as requested, and has not renewed his asylum seeker card. Therefore, it finds that the applicant did not exhaust all domestic remedies in that regard. Concerning the risk of expulsion to Turkey and Iran, the Court declared the complaint inadmissible ratione personae as the applicant lost the victim status after leaving for the UK. However, drawing on its judgment in M.S.S. v. Belgium and Greece, the Court found a violation of Article 3 ECHR due to the failure of national authorities to provide the applicant with adequate living conditions since his release from detention.

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Communicated case: Darwish v. Greece (no. 30275/17), communicated on 2 June 2017

On 2 June 2017, the ECtHR communicated the case Darwish v. Greece (no. 30275/76), concerning inter alia the remedies available to appeal against the detention of a Syrian asylum seeker, the detention conditions at the police station of Mytilene and the lack of an effective judicial review over his detention.

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Communicated case: Nikoghosyan v. Poland (no. 14743/17), communicated on 2 June 2017

On 2 June 2017, the ECtHR communicated the case Nikoghosyan v. Poland (no. 14743/17), concerning inter alia the administrative detention of an Armenian family, including minor children, and the availability of an effective procedure to challenge the lawfulness of the detention. 

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These articles are based on an unofficial translation by the ELENA Weekly Legal Update.

European Union

CJEU Judgment: Case C-9/16 A., 21 June 2017

On 21 June 2017, the CJEU delivered its ruling in case C-9/16 A., which concerned police checks at the internal borders of Schengen states.
The CJEU ruled that Article 67(2) TFEU and Articles 20 and 21 Schengen Borders Code must be interpreted as precluding national legislation conferring on the police authorities the power to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other Schengen states, with a view to preventing or terminating unlawful entry into or residence in the territory of that Member State or preventing certain criminal offences which undermine the security of the border, irrespective of the behaviour of the person concerned and of the existence of specific circumstances, unless that legislation lays down the necessary framework for that power ensuring that the practical exercise of it cannot have an effect equivalent to that of border checks.
However, these same provisions do not preclude a national legislation that permits the police authorities to carry out, on board trains and on the premises of the railways, identity or border crossing document checks on any person, and briefly to stop and question any person for that purpose if those checks are based on knowledge of the situation or border police experience, provided that the exercise of those checks is subject under national law to detailed rules and limitations determining the intensity, frequency and selectivity of the checks.

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CJEU: AG Opinion in Case C-670/16 Mengesteab, 20 June 2017

On 20 June 2017, Advocate General Sharpston published her opinion in case C-670/16, Mengesteab. The questions referred to the CJEU by the Administrative Court of Minden in Germany related to the possibility to challenge a transfer decision under the Dublin III Regulation if the “take charge request” is not made within the time limits set out in the Regulation.
The main proceeding concerns Mr Mengesteab, an Eritrean national who arrived in Germany after entering the EU territory in Italy. On 14 September 2015 he received an attestation in response to his informal request for asylum and he lodged a formal application on 22 July 2016. On 19 August 2016, the German authorities issued a “take charge request” to Italy. Mr Mengesteab challenged that decision by arguing that Germany was responsible for examining his application since the take charge request had been made after the expiry of the three-month time limit set out in the Regulation. In his view, the time for making such request should run from the day of his informal request for asylum.
First, the Advocate General argued that the time limits set out in the Dublin III Regulation are central to its operation and provide a degree of certainty to both applicants and Member States. She rejected the argument that the time limits only govern inter-State relations, since the operation of those time limits has substantive implications for the applicants. Therefore, applicants should be able to challenge transfer decisions where Member States fail to meet the applicable time limits.
Second, she considered the two-month time limit (during which Member States have to submit a take charge request in cases where there has been a Eurodac hit) to start from when the authorities receive the positive hit in the database, and should not be cumulative with the general three-month period for take charge requests.
AG Sharpston put forward that an application for international protection is lodged within the meaning of Article 20(2) DRIII when a form or report reaches the competent national authorities responsible for such applications. In her view, an informal request does not constitute “lodging” within the meaning of the Regulation. The AG also rejected the idea that a delay to submit a take charge request would result in an obligation of a Member State to exercise its discretion under Article 17(1) of the Dublin III Regulation.

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CJEU: Request for preliminary ruling from the Federal Administrative Court (Germany)

The German Federal Administrative Court has referred the following preliminary questions to the CJEU on 1 June 2017:

1. Does Article 67(2) TFEU and Articles 22 and 23 of the Schengen Borders Code preclude a national rule of a Member State obliging bus companies operating regular services within the Schengen area to check documents of their passengers upon crossing a border in order to prevent the transportation of foreigners without passport or residence permit into the territory of the Federal Republic of Germany? In particular:

  • a. Does the general statutory obligation, or the official obligation addressed to a single transport company requiring that foreigners are transported into the German federal territory without the required passport or residence permit, which can only be complied with by checking the documents of all passengers before crossing an internal Schengen border, constitute an identity check within the meaning of Article 22 of the Schengen Border Code?
  • b. Are the duties mentioned in the first question to be exercised in line with Article 23 (1)(a) of the Schengen Border Code despite the transport companies not exercising police powers as per those provisions and despite not being formally authorised to make use of sovereign powers by the public authorities to undertake checks?
  • c. If 1b is answered in the affirmative: are the demanded checks by the transport companies a prohibited measure of similar effect as border checks, in light of the criteria set out in Article 23 (a) sentence 2 of the Schengen Border Code?
  • d. Insofar as they concern bus companies, are the duties mentioned in the first question to be measured in line with Article 23 (1) (b) of the Schengen Borders Code, according to which the absence of border control at internal borders shall not affect the power of transport companies to perform security checks of persons at sea and airports? Does it follow that checks are inadmissible as per question 1 also outside of sea- and airports, if they do not constitute security checks and if they are not undertaken in relation to persons that are travelling in between Member States?

2. Do Articles 22 and 23 of the Schengen Borders Code allow national rules, according to which a suspension of the operating licence and a fine can be issued against a bus company to ensure implementation of that obligation, if, as a result of the failure to undertake checks, foreigners without passport and residence permit have been transported into the territory of the Federal Republic of Germany?

Based on an unofficial translation by the ELENA Weekly Legal Update. The EWLU would like to thank Christian J. Freuling for his kind assistance with translating these questions.

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United Nations

UN Treaty Bodies start to publish lists of pending cases

UN Treaty Bodies have started to publish periodic lists of pending cases, with the view to share the issues to be addressed in the context of the individual complaints procedure and to encourage third party’s interventions (when applicable). We would like to bring your attention to the following pending cases:

  • Pending cases before the Human Rights Committee: communication against Norway related to the detention of family with an infant prior to deportation; communications against Sweden and Denmark related to deportations to Afghanistan; communications against Austria and Hungary related to deportations to Bulgaria.
  • Pending cases before the Committee on the Rights of the Child: communication against Denmark related to deportation to Somalia of a girl under the risk of being subjected to FGM; communications against Spain related to summary deportations to Morocco of unaccompanied minors without verifying identity or age, the detention of alleged unaccompanied minors in centres for adults pending their deportation and methods for age assessment; communication against Denmark related to the deportation to Afghanistan of family with children.
  • Pending cases before the Committee on the Rights of Persons with Disabilities: Communication against Sweden related to the deportation of child with autism to country where adequate treatment and education are not available.

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National Developments

Finland: Supreme Administrative Court rules on children’s right to be heard during the asylum procedure

On 15 June 2017, the Supreme Administrative Court of Finland ruled on case KHO: 2017: 81 regarding a minor’s right to be heard during the asylum procedure. The case concerned an Iraqi man and his child who had their asylum application rejected in Finland and who received a return order to Iraq. The applicants fled Iraq due to previous persecution on religious grounds for being Sunni Muslims. During the asylum proceedings, the minor was not heard by the Finnish asylum authorities as they claimed that the applicants’ asylum claims did not involve the child when considering the father’s statements in the asylum interview. The applicants unsuccessfully appealed before the Administrative Court on the grounds that the minor had to be heard since he had been threatened and bullied at school because of his Sunni background.
The Supreme Administrative Court considered that the asylum claims also concerned the child and that hearing the minor should not have been considered to be manifestly unnecessary.  Based on, inter alia, the Finnish Aliens Act Section 6 (2), the UN Convention on the Rights of the Child (Articles 3 and 13) and the general comments by the UN Committee on the Rights of the Child, the Finnish Supreme Administrative Court ruled that children must be given the right to express their views during immigration and asylum procedures for a proper consideration of their best interests. In the present case, the view of the child had not been examined and taken into account in accordance with the age and maturity of the child. Therefore, the Court quashed the decisions by the (lower) Administrative Court and the Immigration Service and returned the case to the Immigration Service for reassessment of their asylum application.

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Finland Supreme Administrative Court: aged-out asylum seekers should be considered minors when applying the Dublin criteria

On 9 May 2017, the Supreme Administrative Court of Finland ruled on case KHO: 2017: 77 on whether an applicant who reached the age of majority during the asylum proceedings ought to be considered an unaccompanied minor under the Dublin III Regulation. The applicant was under age when he was registered by the Bulgarian and Hungarian authorities and also when he later applied for asylum in Finland. The question was if, in a situation where an asylum seeker reaches the age of majority during the asylum procedure, his application ought to be assessed in Finland in accordance with Article 8(4) of the Dublin III Regulation (“[the] Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor”).
The Supreme Court considered that the phrasing of Article 8(4) of the Dublin III Regulation and the CJEU’s jurisprudence (e.g. MA and others (C-648/11)), required the date of an applicant’s submission for asylum to be the decisive date when applying the Dublin criteria. Therefore, asylum seekers who turn eighteen during the asylum proceedings are to be considered minors when applying the Dublin Regulation. Consequently, the Supreme Administrative Court ruled that Finland was the Member State responsible for assessing the asylum application.

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Based on an unofficial translation by the ELENA Weekly Legal Update. The EWLU would like to thank Marjaana Laine, ELENA Coordinator for Finland, for her assistance summarising these cases.

Finland: updated guidance on the situation in Afghanistan, Iran and Somalia

The Finnish Immigration Service has updated its guidance on the security situation in Afghanistan, Iraq and Somalia. The reports are updated every six months.

Regarding Afghanistan, the authorities report that the threat of arbitrary violence is extremely high in certain areas of the country (Helmand Province, the Tirin Kot and Dehrawud districts in Urozgan, southern districts of Nangarhar), but the possibility of internal flight to Kabul still exists and should be assessed on an individual basis (except for unaccompanied minors, to which internal flight alternatives should not apply).

With regard to Somalia, the authorities point to the serious drought and humanitarian crisis in that country in 2017. Yet, since humanitarian protection is no longer covered by the Finnish law, subsidiary protection in relation to the humanitarian crisis in Somalia will be assessed individually and when governmental and non-governmental groups limit the access to the receipt of humanitarian aid. Assessing the availability of internal flight alternative is not required for unaccompanied minors, single women without a safety network, and families without a caregiver fit for work.

As for Iraq, internal flight to Baghdad can be applied, except for vulnerable groups and Sunnis fleeing ISIS-controlled areas, if their rights risk being violated by Shi’ia militia and they do not receive protection from the authorities.

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Michigan Guidelines on Refugee Freedom of Movement 

In this eighth iteration of the Michigan Guidelines on the International Protection of Refugees, leading authorities joined senior students of the Michigan Law School to debate relevant norms of refugee and international human rights law, and reached consensus on the core norms governing all aspects of refugee’s freedom of movement, including: departure to seek protection; access to protection; liberty upon arrival; movement and residence; and return to one's own country. The Guidelines expressly address important contemporary challenges including the relationship to duties to combat smuggling and trafficking; resort to unmanned barriers to entry, such as walls and fences; the relevance of mass influx; and the implications of long-term asylum for repatriation if and when cessation occurs.

The EWLU would like to thank James C. Hathaway for bringing this to our attention.

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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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