ELENA Weekly Legal Update (EWLU)

19 July 2019

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European Court of Human Rights

Communicated Cases against Italy and the Netherlands

The European Court of Human Rights (ECtHR) has recently communicated three asylum-related cases:

  • S.S. and others v. Italy (application no. 21660/18): The case concerns 17 applicants who were part of a group of 150 people to leave Libya on 5 November 2017 in a dinghy. The Maritime Rescue and Coordination Centre (MRCC) in Rome received a distress message from the dinghy and asked ships in the area to assist. Three ships responded, including the rescue ship Sea Watch 3, a French military ship and the Libyan Coastguard aboard ‘Ras Jadir’. The Libyan Coastguard failed to cooperate with the other ships during the rescue and caused deaths and injuries to those on the dinghy. The applicants, fifteen of whom were rescued by SW3 and brought to Italy, complain under Articles 2 and 3, read in conjunction with Article 1 that the Italian authorities failed to protect their lives and physical integrity vis-à-vis the actions of the Ras Jadir crew. Six applicants accuse the Libyan coastguard of ill-treatment and of causing injury during rescue operations coordinated by the MRCC. Under Articles 3 and 4, all applicants complain that they were threatened with return to Libya where they would face inhuman and degrading treatment and risk refoulement. Two applicants, who were returned to Nigeria, complain under Article 3 and Article 4 of Protocol No. 4, read in conjunction with Article 1, of conditions of detention in Libya, inhuman and degrading treatment, and the absence of effective remedies. Lastly, under Article 13 read in conjunction with Articles 2 and 3 and Article 4 of Protocol No 4, the applicants complain, inter alia, with regard to access to effective remedy.
  • Y.F.C. and others v. the Netherlands (application no. 21325/19): The seven applicants, all Venezuelan nationals, were apprehended in the territorial waters of the Dutch territory of Curaçao on 11 April 2019. They were issued decisions denying them entry, declaring them undesirable aliens, ordering their expulsion and placement in detention. The applicants raise complaints under Articles 3 and 5 §§ 1 (f), 2 and 4 of the Convention, and Article 4 of Protocol No. 4.
  • M.S. v. Italy (application no. 23845/19): The applicant is a Russian national who was arrested in Rome following the issuance of an extradition order from Kyrgyzstan to face criminal charges. The applicant complains under Article 3 of the Convention that his extradition to Kyrgyzstan would expose him to a real risk of ill-treatment, particularly during the pre-trial detention phase. He further complains that Italian authorities failed to sufficiently consider this risk.

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European Union

CJEU: Wide margin of discretion for Member States in defining threat to public order for short-stay visa holders

On 11 July, the Court of Justice of the European Union (CJEU) held that Member States should be afforded a wide margin of discretion in interpreting the definition of a threat to public order in the decision to revoke a short-term visa.

The case concerns an Albanian national who entered the Netherlands in April 2016 on a short-stay Schengen tourist visa. In May 2016, he was detained and accused of committing a ‘serious’ crime. The Secretary of State ordered him to leave the territory within 28 days. On appeal, the Court of the Hague held that the Secretary of State failed to conduct an individual assessment to prove the applicant presented a real, current and sufficiently serious threat to public order under Article 6 (1) (e) of the Schengen Borders Code (SBC), as amended by Regulation 2016/399. The Court of the Hague sought clarification from the CJEU on the definition of a threat to public order in the above context and whether it is sufficient to consider an applicant to be a threat when they are only suspected of committing an offence.

The CJEU first recalled the close linkages between the SBC, the Schengen Agreement, and the Returns Directive 2008/115/EC. It recalled that Article 20 (1) of the Schengen Convention (Regulation 610/2013) details conditions a visa applicant must comply with, including not posing a threat to a Member State. When these conditions are not met, the third-country national is considered to be in the state irregularly and can be returned as provided for under Article 3 (2) of the Return Directive.

The CJEU held that although a threat to public order is not defined in the SBC or the Schengen Convention, the interpretation of the phrase should take into account the general context and objective of these legislative acts. Requiring authorities to base their decision on a systematic and accurate assessment of the personal conduct of the applicant and to demonstrate the existence of a real, current and sufficiently serious threat that affects a fundamental interest of society and would make the decision-making processes for visas more difficult. In these particular circumstances, it is necessary to grant a wide margin of discretion to the national authorities.

It ruled that Article 6 (1)(e) of the SBC, in relation to Article 20 of the Schengen Convention, should be interpreted as meaning that in order to declare a third-country national’s stay to be irregular, the national authorities do not have to justify that the individual constitutes a real, current and sufficiently serious threat to public order. Furthermore, it held that, in principle, a threat to public order can result from the mere existence of a serious suspicion of committing a crime. Nonetheless, authorities are obliged to base their decision on concrete facts and to respect the principle of proportionality.

Based on an unofficial translation of the EWLU.

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EASO: Updated Country Guidance Notes on Afghanistan and Iraq

The European Asylum Support Office (EASO) has updated the Country Guidance notes on Afghanistan and Iraq.

The Country Guidance on Afghanistan examines particular profiles of individuals at risk, including, inter alia, government officials, women, children, ethnic and religious minorities and individuals involved in blood feuds and land disputes, and their qualification for refugee status. Qualification for subsidiary protection status is also addressed with an examination of indiscriminate violence as well as the current security situation in each region of Afghanistan. This updated guidance includes analysis of Article 15 (c) of the Qualification Directive 2011/95/EU. Additionally, information on the internal protection alternative within Afghanistan has been updated as well as information on individuals of Hazara ethnicity.

The Country Guidance on Iraq presents an overview of the current situation in the country and examines the particular profiles of individuals at risk who would qualify for refugee status including, inter alia, persons perceived to be associated with ISIL, Sunni Arabs, women, children and ethnic and religious minorities. The report also examines qualification for subsidiary protection, analyzing the regional situation in Iraq, actors of protection, and the internal protection alternative.

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Council of Europe

CPT: New report on immigration detention in Bulgaria 

The Committee for the Prevention of Torture (CPT) of the Council of Europe has published an update on Bulgaria. The report follows a visit to Bulgaria to examine the treatment and conditions of detention of third-country nationals.

In Border Police establishments, material conditions were considered to be acceptable for the maximum period of 24 hours and a number of recommendations were made for improvements to named facilities. While persons detained by the Border Police were generally provided with written information on their rights and granted access to a lawyer and an interpreter, the CPT recommended that steps be taken to ensure those detained know whether a third-party of choice had been informed of their detention.

In immigration detention facilities, the report details an improvement in detainee-staff relations. However, it catalogues how there continue to be issues with inter-detainee violence and calls for urgent measures to improve material conditions, including, inter alia, access to food, water and a bathroom at nighttime.  There also remain issues with the lack of activities and minimal access to healthcare, with particular concerns on the poor access to psychiatric care.

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National Developments

Ireland: Dublin transfer decisions must be re-assessed with regard to discretionary powers of Article 17 

On 26 June, the Court of Appeal ruled to re-assess the Dublin transfer decision of a mother and her children to the UK under the discretionary clauses of Article 17 of the Dublin III Regulation 604/2013 (‘Dublin III’).

The applicants, a Pakistani national and her three children, applied for asylum in Ireland having fled from the father of the family in the UK. As visa holders in the UK, a Take Charge Request under Article 12 (4) of Dublin III was sent and accepted by UK authorities. The applicants appealed the transfer decision with reference to the discretionary powers of Article 17 of Dublin III, which permit Member States to assume responsibility of an asylum application on humanitarian or compassionate grounds.

A central question to the case concerned the national decision-making bodies responsible for the exercise of discretionary power under Article 17. With reference to the cases  of  C.K. (C-578/16) and M.A. (C-661/17) of the Court of Justice of the European Union (CJEU), as well as a ‘plain language’ interpretation of the implementing European Union (Dublin System) Regulations 2014, the Judge held that discretion may be exercised by the deciding body at each and every stage of the process and is not held only by the Minister. With this, she found that to derogate from Dublin III under Article 17, it must be done prior to making a transfer decision. The judge held that the Office of the Refugee Appeals Commissioner (ORAC), now the International Protection Office (IPO), can exercise such discretionary power under Article 17 in deciding the Member State responsible. With regard to the sovereignty clause, the judge held that the decision maker who determines the Member State responsible is doing no more than assuming jurisdiction, and is not engaged in controlling the entry, residency and exit of foreign nationals. 

Regarding criteria necessary for discretionary power to be exercised, the Judge held that discretion is “fact sensitive” and that the Court could not outline matters to be considered in an individual case. However, she identified some of the factors in the instant case as potentially relevant, including, inter alia, the complex family relationship, that the mother was receiving counseling and medication, that the eldest son had been subject to violence by the father, and that all children were attending school in Ireland.

With reference to Article 51 (1) of the Charter of Fundamental Rights of the European Union, s. 3 of the European Convention on Human Rights Act 2003 and CJEU case law, the Judge held that the impact of Article 8 of the European Convention of Human Rights (ECHR) and Article 7 of the Charter should be considered by the decision maker when deciding on the responsible Member State. She held that, as established by the CJEU, Member States have an obligation to assess the risk of likely consequences to the health and wellbeing of an asylum applicant in making a transfer decision, and thus, by analogy, the Member State must also consider other fundamental rights, including Article 8 of the ECHR. While she held that these fundamental rights claims were not submitted in the initial application to the Refugee Appeals Tribunal in the instant case, such considerations could be held in future cases. 

The EWLU would like to thank Brian Burns SL, who instructed Barristers Eamonn Dornan and Paul O’Shea in the instant case, for providing information on the case.

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Netherlands: Court appoints UNHCR to investigate conditions for families transferred to Italy under Dublin

On 28 June, the Court of the Hague issued an interim ruling in a case concerning the transfer to Italy under the Dublin Regulation 604/2013 (‘Dublin III’) of a family with minor children.  

The Court recalled the findings of Tarakhel v. Switzerland from the European Court of Human Rights (ECtHR), which held that the transfer of particularly vulnerable asylum applicants to Italy could be contrary to Article 3 in the absence of individual guarantees. It referenced the Salvini Decree from 24 September 2018, which ordered that all asylum applicants, excluding unaccompanied minors, be accommodated in Emergency Reception Centres (Centri di Accoglienza Straordinaria, CAS) and Centres for the Reception of Asylum Applicants (Centri di Accoglienza per Richiedenti Asilo, CARA).

The Court held that the Secretary of State for Justice failed to sufficiently ensure reception conditions in Italy met the requirements established for vulnerable applicants in the Tarakhel ruling. It failed to explain how the current situation was different to that of the Tarakhel ruling, particularly with regard to the quality of care for children, the inadequate conditions in reception centres and the splitting up of families.

In the opinion of the Court, the Secretary of State is still required to request and obtain guarantees from the Italian authorities before a family with minor children can be transferred under the Dublin Regulation. The general guarantees provided in the circular letter from the 8 January 2019 do not give details on how families with minor children will be taken care of and whether reception facilities meet the special needs of minor children.

The Court considered that further investigation of the situation for families in the CAS and CARA reception locations was necessary and held that the United Nations High Commissioner for Refugees (UNHCR) was the most competent body to conduct such an investigation before a final ruling can be made on the case.

Based on an unofficial translation of the EWLU. The EWLU would like to thank Sadhia Rafi, ELENA Coordinator for the Netherlands for bringing our attention to the case.

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Poland: Supreme Administrative Court holds violence inflicted by public officials is grounds for international protection

On 6 March 2019, the Supreme Administrative Court in Poland overturned the decision of the Administrative Court of Warsaw in a case regarding the granting of international protection to an applicant of Chechen origin.

The applicant was detained by authorities in Chechnya on three occasions within the space of three months and subjected to physical and psychological abuse. The Chechen authorities sought information from the applicant on the activities of radical opposition fighters.

In the decisions from the Office of Foreigners and the courts, it was held that the applicant was detained and subject to abuse for the purpose of extracting information and not for membership of a particular social group. It held that the applicant would not face the death penalty if returned and there was no certainty that he would be subject to abuse upon return. It was also found that the security services of Russia are entitled to carry out operational and investigative activities in the combat against radical Islamist groups.

The Supreme Court overturned the decision and held that in cases where physical and psychological abuse by public authorities had been used in the past, the applicant had a justified fear that he would face a real risk of serious harm if returned. It recalled that assurances can be sought from authorities of a country of origin to ensure that the applicant would not face abuse if returned, but these assurances must be sought at the administrative stage of proceedings. It determined that the applicant qualified for subsidiary protection status as a result of the violence he faced at the hands of the authorities.

Based on an unofficial translation. The EWLU would like to thank Małgorzata Jaźwińska, who represented the applicant, for providing us with the case.  

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European Lawyers in Lesvos: Asylum Lawyer Vacancy

The European Lawyers in Lesvos (ELIL) are recruiting an asylum lawyer to start with their team on Lesvos in August 2019. They are a team of Greek asylum lawyers and volunteer European asylum lawyers who provide free, independent legal assistance to asylum applicants. ELIL is currently recruiting a lawyer registered with the Greek Bar Association.

For further information, please click 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 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 (

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