ELENA Weekly Legal Update - 14 March 2014
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14 March 2014


European Court of Human Rights
European Union

European Court of Human Rights

Abdu v. Bulgaria (no. 26827/08) [Articles 3 and 14], 11 March 2014

The European Court of Human Rights has ruled that Bulgarian authorities failed to properly investigate the potentially racist nature of an attack on a Sudanese national in Bulgaria’s capital, Sofia, in 2003. The victim alleged to police that, while he was being kicked on the ground, he was called a ‘dirty nigger’ by the attackers, who were subsequently identified by police as ‘skinheads’, known for their extremist and xenophobic ideology. Despite this, Bulgarian authorities did not ask the only witness about any remarks he may have heard during the incident, nor did they question the attackers about a possible racist motive. The attackers were accordingly not prosecuted for “racially motivated violence”, which is punishable by imprisonment under Bulgarian law.

Article 3 of the European Convention on Human Rights prohibits inhuman and degrading treatment, and also imposes a procedural obligation on the state to mount an effective investigation capable of punishing those responsible for such treatment. Article 14 bans unjustified discrimination including on the basis of race or ethnicity. The Court concluded that, despite having plausible evidence pointing to a possible racist motive, the authorities had failed in their duty to take all reasonable steps to establish the accuracy of that evidence. The Court therefore held that there had been a violation of Articles 3 and 14. Bulgaria was ordered to pay 4,000 Euros compensation to the applicant.

Read the judgment (French only) and the press release of the ECtHR.

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European Union

Court of Justice: Judgment in Case C-456/12, S. and G., 12 March 2014

(Directive 2004/38/EC – Article 21(1) TFEU – Right to move and reside freely within the territory of the Member States – Beneficiaries – Right of residence of a third‑country national who is a family member of a Union citizen in the Member State of which that citizen is a national – Return of the Union citizen to that Member State after short periods of residence spent in another Member State)

Facts of the case

Mr O., a Nigerian national, married a Netherlands national in 2006 and from 2007 to April 2010 lived in Spain. During this period, the Netherlands national resided for two months with Mr O. in Spain, and visited regularly on vacation. Since July 2010, Mr O. has resided in the Netherlands.

Mr B., a Moroccan national, lived with his partner, who has Dutch nationality, in the Netherlands from 2002 to 2005. In 2005, Mr B. moved to a flat in Belgium, and his partner came to stay every weekend. In April 2007, Mr B. returned to Morocco and in July married his Dutch partner. Mr B. moved to the Netherlands in June 2009 to reside with his partner.

Both Mr O. and Mr B. applied for the right of residence in the Netherlands on the basis of Directive 2004/38/EC, which grants EU citizens and their family members the right to move and reside freely within the territory of the Member States.  Both were refused at first instance and, in the context of their appeals, the Raad van State made a preliminary reference to the CJEU. The case concerns the right of residence of a family member of an EU citizen when the latter returns to the Member State of which he is a national after short periods of residence in another Member State with the family member in question.

Questions referred for a preliminary ruling

Should Directive 2004/38/EC ... , as regards the conditions governing the right of residence of members of the family of a Union citizen who have third-country nationality, be applied by analogy, as ...  in Case C-370/90 Surinder Singh  and in Case C-291/05 Eind,  where a Union citizen returns to the Member State of which he is a national after having resided in another Member State in the context of Article 21(1) of the Treaty on the Functioning of the European Union, and as the recipient of services within the meaning of Article 56 of that Treaty?

If so, is there a requirement that the residence of the Union citizen in another Member State must have been of a certain minimum duration if, after the return of the Union citizen to the Member State of which he is a national, the member of his family who is a third-country national wishes to gain a right of residence in that Member State?

If so, can that requirement then also be met if there was no question of continuous residence, but rather of a certain frequency of residence, such as during weekly residence at weekends or during regular visits?

As a result of the time which elapsed between the return of the Union citizen to the Member State of which he is a national and the arrival of the family member from a third country in that Member State, in circumstances such as those of the present case, has there been a lapse of possible entitlement of the family member with third-country nationality to a right of residence derived from Union law?

Consideration of the questions referred

The Grand Chamber started by noting that Directive 2004/38 is ‘not intended to confer a derived right of residence on third‑country nationals who are family members of a Union citizen residing in the Member State of which the latter is a national’ [43]. The Grand Chamber then suggested that the refusal of a right of residence to a third-country family member of an EU citizen who has returned to their own Member State may interfere with that EU citizen’s freedom of movement under Article 21 of the Treaty on the Functioning of the EU [45]. According to the Grand Chamber, an obstacle to the EU citizen leaving their Member State is created by the refusal to confer, when that citizen returns to his Member State of origin, a derived right of residence on the family members of that citizen, where that citizen resided with his family members in the host Member State [47-50].

However, the Grand Chamber ruled that such an obstacle ‘will arise only where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State’ [51]. Accordingly, ‘it is genuine residence in the host Member State of the Union citizen and of the family member who is a third‑country national ... which creates, on the Union citizen’s return to his Member State of origin, a derived right of residence ... for the third‑country national with whom that citizen lived as a family in the host Member State’ [56]. According to the Grand Chamber, genuine residence is where the EU citizen satisfies the requirements of Article 7 of Directive 2004/38 relating to a right of residence for a period of longer than three months. In this regard, ‘short periods of residence such as weekends or holidays spent in a Member State other than that of which the citizen in question is a national, even when considered together ... do not satisfy those conditions [in Article 7]' [59].

See also the Grand Chamber’s same-day judgment in Case C-457/12, S. & G., which likewise concerns the refusal of Netherlands’ authorities to grant a right of residence to a third-country national family member of an EU citizen of Netherlands nationality. However, unlike Case C-456/12, the Union citizens in question have not resided with a family member in a Member State other than that of which they are nationals. In this case, the EU citizens reside in their own Member State but regularly travel to another Member State as a worker within the meaning of Article 45 TFEU. In such a scenario, the Grand Chamber rules that the third-country national family member is conferred a derived right of residence in the citizen’s Member State if the refusal of such a grant  would discourage the worker from effectively exercising his rights under Article 45 TFEU, which it is for the referring court to determine.

Read the judgments of the CJEU in Cases C-456/12 and C-457/12, and the CJEU’s official press summary for both judgments.

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Commission: Communication on the future of EU Home Affairs policies

As the Justice and Home Affairs Stockholm programme comes to an end in December 2014, the European Commission has published a Communication on the Future of EU Home Affairs policies. As regards asylum, the Commission stresses the need to ensure a more ‘orderly’ arrival of asylum seekers, reducing the occurrences of human smuggling and human tragedies during travel to Europe. According to the Commission, the EU’s commitment to resettlement needs to be increased and Protected Entry Procedures – which would enable people to claim asylum without undertaking a risky journey to reach the EU borders – could complement resettlement. The Commission also proposes to initiate a feasibility study on possible joint processing of asylum claims outside of the EU – without affecting the right to claim asylum within the EU Member States. The European Commission stresses the need for Member States to support others which are facing high temporary pressure on their asylum systems and to explore ways of achieving more responsibility sharing between Member States.

Earlier this year, ECRE submitted its recommendations on the future of EU asylum and migration policies.

Read the Commission’s Communication, press release, and accompanying statistics.

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European Asylum Support Office: Publication on ‘Age Assessment Practice in Europe’

In ‘Age assessment practice in Europe’, the European Asylum Support Office (EASO) recommends to Member States the necessary safeguards to ensure that the use of age assessments in asylum procedures is respectful of the rights of children. The publication also explores the advantages and disadvantages of the age assessment methods in use and gives an overview of the international, European and national legal provisions, policy frameworks and available guidance, with a view to promoting good practice among Member States.

In evaluating the available options, EASO chooses not to propose a particular method of age assessment. EASO recommends that age assessment should only be used in cases where there is doubt as to whether the applicant is a child. Assessment should be approached without over-reliance on one single method, as no method is perfectly accurate, and the process should involve the relevant experts. Recommendations also include the prior consideration of documentary evidence before resorting to medical examination and the selection of the least invasive method of examination. The individual and/or their representative where appropriate must have the option, following consultation and a request for consent, to refuse an age assessment and not thereby cause an automatic refusal of the protection claim. If an individual disagrees with the outcome of an assessment, EASO recommend that there should be an opportunity for them to challenge the decision. Finally, all individuals involved should be provided with initial and on-going training relevant to their expertise.

The publication includes an overview of practice on age assessment as indicated by states. According to the states’ own assessment,  Belgium, Greece, Lithuania and Norway currently use all of EASO’s recommended safeguards age assessment of asylum applicants By contrast, only a few of the safeguards are engaged in Slovenia, Slovakia and Luxembourg.

Read EASO’s publication on age assessment practice in Europe.

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European Economic and Social Committee: Opinion published in Official Journal on irregular immigration by sea

In an Opinion entitled ‘Irregular immigration by sea in the Euromed region’, the EESC issues proposals on upholding the human rights of irregular immigrants, saving lives at sea, safe disembarkation of rescued vessels, access to the asylum procedure, safeguards in return procedure, intra-EU resettlement of asylum seekers based on the principle of solidarity and burden-sharing, co-operation with third countries, and democratic scrutiny of Frontex operations.

Read the Opinion of the EESC.

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Council of Europe

Committee of Ministers: Decision issued on ‘Garabayev group’ concerning abductions and irregular transfers of asylum seekers from Russia

The Committee of Ministers of the Council of Europe has issued a Decision again expressing ‘serious concern’ over the continued failure of Russia to implement a ‘protective and preventive mechanism’ to bring an end to abductions and unlawful transfers of asylum seekers in Russia to countries where they face a real risk of torture or ill-treatment. The requirement for this reform arises from a group of judgments of the European Court of Human Rights (ECtHR), and was re-iterated to Russia in the Committee’s Interim Resolution, which was adopted on 26 September 2013 in the course of their periodical supervision of the implementation of ECtHR judgments.

The group of 34 cases, collectively known as the 'Garabayev group', named after the applicant in the first case, Garabayev v Russia (no. 38411/02), arise from a series of applications to the ECtHR since 2002. All of the cases concern persons seeking asylum in Russia who had attempted to halt their requested extradition or expulsion to States where they would face a real risk of torture and ill-treatment, such as Turkmenistan, Tajikistan, Kazakhstan, Kyrgyzstan, Uzbekistan and Belarus. In each final judgment, the ECtHR declared that the expulsion or extradition of the applicant would violate their rights under Article 3 of the European Convention of Human Rights (ECHR), which prohibits torture and degrading treatment. In each case still pending, the Court had issued a Rule 39 interim measure prohibiting the removal of the applicant. In all cases, the person has disappeared and their irregular removal is suspected.

The Committee’s decision last week expressed serious concern that ‘the repetitive nature of the violations established suggests that certain authorities developed a practice in breach of their obligations under Russian law and the Convention’. Also a cause for serious concern is a new incident, taking place in spite of Russia’s alleged reforms and the Committee’s recommendations, regarding Mr Azimov, who was reportedly abducted on 3 December 2013 from a temporary accommodation centre under the authority of Russia’s Federal Migration Service. His current whereabouts are unknown. The Committee regrets the slow progress of the Russian authorities in implementing a protective and preventive mechanism and seeks information from Russia as to how it intends to improve security guarantees in temporary accommodation centres and provide assistance in the resettlement of asylum seekers to safe third countries. The Committee also wishes to know what Russia is doing to ensure that investigations into abductions are efficient, are subject to close scrutiny, and result in the rapid prosecution of those responsible.

Read the Decision of the Committee of Ministers.

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Forum réfugiés-Cosi: 13 recommendations for reform of French Asylum law

In the lead up to the French Council of Ministers considering reform of the asylum system in April 2014, French NGO Forum réfugiés-Cosi has published 13 recommendations designed to make the asylum system fairer and more protective for applicants seeking international protection in France. The move for reform arises in the context of France’s need to implement the recast EU asylum legislation. According to Forum réfugiés-Cosi, reform is also necessitated by strains on France’s reception capacity, and it is recommended that 10,000 new places are created and distributed more effectively across the country.

Other recommendation include that all asylum seekers should be issued with a temporary residence permit in order to ensure protection of rights and access to housing and universal healthcare coverage while their application is being examined. Applicants subject to the Dublin procedure should be entitled to full reception conditions, including universal healthcare coverage. The French authorities are also called on to apply the Dublin III Regulation’s discretionary clause in order to examine the claims of applicants in cases where the responsible Member State’s asylum system has systemic deficiencies. Consideration of an asylum application at first instance and on appeal must at each stage take no longer than 6 months, without compromising the quality of the decisions. The concept of ‘safe countries of origin’ must be kept under strict review. Asylum applicants whose claims have been rejected, as well as applicants challenging their removal under the Dublin procedure, must be allowed to remain in the country while their appeal is examined. The means of identification and management of vulnerable applicants must be improved, and all unaccompanied children seeking asylum should be afforded quality legal representation.

Read Forum réfugiés-Cosi’s publication (French only).

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Hungarian Helsinki Committee: Guide on establishing a Refugee Law Clinic

A short document aiming ‘to provide support and practical ideas to universities, teachers, lawyers, NGOs, students and anyone else interested in establishing a “Refugee Law Clinic”’ anywhere in the world has been published by the Hungarian Helsinki Committee (HHC). HHC defines a Refugee Law Clinic as ‘a voluntary organization run by law students, providing free legal advice to asylum-seekers and refugees. The clinic is run under the supervision of university professors and practicing lawyers in this field’. The document explains the benefit of such a clinic to asylum seekers, students, the university and the lawyers and NGOs that get involved. The document then sets out seven steps to setting up a Refugee Law Clinic and introduces a publication called the Refugee Law Reader.

Read HHC’s guide to setting up a Refugee Law Clinic.

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Odysseus Network: European Congress on Asylum in Brussels on 8 & 9 April, 2014 Summer School and 2014-15 Certificate

The Odysseus Network is an academic network for legal studies on immigration and asylum in Europe.

7th European Congress of Jurists specialised in Immigration and Asylum

The Congress will take place in Brussels on 8 and 9 April 2014, is devoted to the 2nd generation of asylum instruments adopted on 26 June 2013, and will propose to the audience: (1) a "vertical" approach - each instrument is explored by a general report presenting the new aspects and measuring the progress accomplished towards greater harmonisation; (2) a "horizontal" approach - key questions analysed throughout all the instruments to evaluate their coherence by a panel of experts after each report. The final session will assess the progress towards a CEAS (Common European Asylum System). The Congress ‘will argue that it is not finalised in view of the strategic guidelines that will be adopted in June by the European Council to follow up the Stockholm programme’. The meeting ‘will be a unique opportunity to better understand the legal and political developments of asylum in the EU and to network with the numerous people who will attend’.

As places are limited, the organisers advise that you register quickly through the Congress page of the Odysseus website.

Certificate and Summer School

The Odysseus Network also advertise forthcoming education and training programmes in European Immigration and Asylum Law: the 14th edition of our Summer School that will take place in Brussels from 30 June till 11 July 2014 and the 8th edition of the one year Certificate that will start in Brussels on 5 September 2014.

All the information is available on the website of the Odysseus Network.

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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 Matthew Fraser (mfraser@ecre.org) or Julia Zelvenska (jzelvenskaya@ecre.org).

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