ELENA Weekly Legal Update - 17 January 2014
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17 January 2014


European Court of Human Rights
European Union
Call for Applications

European Court of Human Rights

F.G. v. Sweden (no. 43611/11) [Articles 2 and 3], 16 January 2014

The applicant, an Iranian national, sought asylum in Sweden in 2009 on the basis of his past publication while in Iran of web pages critical of the government and his subsequent conversion to Christianity once in Sweden. He alleged a real risk of persecution based on political opinion and religious belief respectively, if returned to Iran. His application was supported by a summons he received to the Revolutionary Court in Iran.

The Swedish authorities, at first instance and on appeal, rejected his application and ordered his expulsion due to the lack of seriousness of the summons and the low-level nature of his political activities. Regarding his Christianity, the Migration Court of Appeal noted that the applicant had not initially relied on this in his claim to the Migration Board, nor during his oral hearing before the Migration Court, preferring to keep it a private matter. The issue could therefore not now be raised on appeal.

The applicant complained to the ECtHR that if expelled to Iran he would be at a risk of being punished or sentenced to death, relying on Articles 2 (right to life) and 3 (prohibition of degrading or inhuman treatment).

The Court was divided by 4 to 3. The majority found no risk of violation of Articles 2 or 3. On political persecution, the majority noted that (1) the applicant's alleged activity - publishing anti-government web pages - was 'peripheral', 'vague and lacking in detail' and not substantiated by evidence, (2) the applicant had continued to publish critical web pages for two years after being initially questioned by authorities, (3) he had not been summoned again before the Revolutionary Court for over 4 years, (4) his family in Iran had not been persecuted, and (5) he had stopped political activities since arriving in Sweden.

On religious persecution, the majority agreed with the Swedish authorities’ handling of the matter and relied on the fact that the applicant ‘has kept his faith a private matter’, adding that, in any event, ‘there is nothing to indicate that the Iranian authorities are aware of his conversion’ [41].

The three dissenting judges, while accepting the majority’s reservations on the risk of political persecution, took the view that the majority and the Swedish authorities had failed to properly assess the risk to the applicant of religious persecution. The procedural reasons for rejecting the applicant’s claim were regarded by the minority as inadequate. In addition, by relying on the ‘private’ nature of the applicant’s Christianity, the majority wrongly implied that 'any such risk, if it exists, could be avoided by the applicant’s concealment of his religious conversion'.  The minority drew attention to COI regarding the persecution of Christians in Iran as well as the decision of the CJEU in Bundesrepublik Deutschland v. Y (C-71/11) and Z (C-99/11), which holds that the possibility of concealing religious belief cannot be relied on to dismiss the persecution risk and refuse protection.

Read the judgment of the European Court of Human Rights.

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New ECtHR stricter rules on applications now in force

As of 1 January 2014, any form sent to the European Court of Human Rights must be completed in full and accompanied by copies of the relevant documents. All incomplete applications will be rejected by the Court without being allocated to a judicial formation.

In addition, new rules apply on ‘interrupting’ the period within which an application must be made to the Court. As before, applications must be made within six months from the final decision of the highest domestic court with jurisdiction. From 2014, in order to interrupt this period, a duly completed form must be sent to the Court within the six months, accompanied by the relevant documents. Incomplete files will not have an interrupting effect.

To make the stricter rules easier to comply with, a new and simplified application form is now available on the Court’s website, together with assisting documents.

Read the official Press Release of the European Court of Human Rights.

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European Union

Court of Justice: Judgment in Case C-378/12 Onuekwere, 16 January 2014

(Request for a preliminary ruling – Directive 2004/38/EC – Article 16(2) and (3) – Right of permanent residence of third-country nationals who are family members of a Union citizen – Taking into consideration of periods of imprisonment of those nationals)

Facts of the case

Mr Onuekwere, a Nigerian national, married an Irish citizen residing in the UK and obtained a five-year residence permit as a family member of an EU citizen. During his residence, he spent time in prison for various offences for a total period of three years and three months. When his wife acquired the right of permanent residence in the UK, he also requested this right on the basis that his total residence, as required, had exceeded five years, even without including the periods of imprisonment. His request was rejected and, on appeal to the UK Upper Tribunal, that judicial body made a preliminary reference to the CJEU concerning the effect of imprisonment on the calculation of continuous residence.

Questions referred for a preliminary ruling

1. In what circumstances, if any, will a period of imprisonment constitute legal residence for the purposes of the acquisition of a permanent right of residence under Article 16 of [Directive 2004/38]?

2. If a period of imprisonment does not qualify as legal residence, is a person who has served a period of imprisonment permitted to aggregate periods of residence before and after his imprisonment for the purposes of calculating the period of five years needed to establish a permanent right of residence under [Directive 2004/38]?

Consideration of the questions referred

As to the first question, the Court noted that under Article 16(2) of Directive 2004/38, the right of third country national family members to acquire permanent residence requires that ‘those family members have resided with [the EU citizen] for the period in question’ [18]. The Court held that the term ‘reside with’ necessarily excludes periods of imprisonment from the calculation of the period of residence.

The Court considered that, based on Recital 17 to the Preamble of Directive 2004/38, the right to permanent residence is subject to the integration of the person in the host Member State. The Court concluded that ‘the imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a Member State of the right of permanent residence for the purposes of Article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that directive in establishing that right of residence’ [26].

Regarding the second question, the Court held that, for the same reasons as above, continuity of residence must be interrupted by periods of imprisonment. The requirement in Article 16(2) of five years of ‘continuous’ residence ‘with’ an EU citizen cannot be satisfied by merely aggregating periods of residence either side of a period of imprisonment. To hold otherwise would be inconsistent with the integration aim of the Directive.

Read the judgment and official press release of the Court of Justice of the EU.

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European Parliament: LIBE Committee approve resolution entitled ‘Situation of fundamental rights in the European Union’

On 13 January 2014, the Civil Liberties Committee voted in support of a resolution that includes points on asylum and migration matters. Addressing the assistance of migrants distressed at sea, the resolution states that rescue efforts "should be welcomed and (...) never lead to any form of sanctions". MEPs also criticise the fact that children applying for international protection are still at risk of detention. The full Parliament is expected to vote on the resolution at the 24-27 February session in Strasbourg.

Read the pre-amendment draft resolution and the press release of the European Parliament’s LIBE Committee. 

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Council of Europe

Commissioner for Human Rights: Letter to Greek ministers calls for an end to collective expulsions

Nils Muižnieks, the Council of Europe Commissioner for Human Rights a letter on 5 December 2013 to the Greek Ministers of Public Order and Citizen Protection, Mr Nikolaos Dendias, and of Shipping and the Aegean, Mr Miltiadis Varvitsiotis. The letter was published on 14 January 2014. In the letter, the Commissioner writes that ‘the large number of reported collective expulsions by Greece of migrants, including a large number of Syrians fleeing war violence, and allegations of ill-treatment of migrants by members of the coast guard and of the border police raise serious human rights concerns. I call on the Greek authorities to carry out effective investigations into all recorded incidents and take all necessary measures in order to end and prevent recurrence of such practices’.

The letter goes on to say that ‘in addition to being incompatible with international human rights and refugee law, collective expulsions of migrants are also ineffective, given that people facing desperate situations cannot really be prevented from migrating. To uphold its human rights obligations, Greece has to radically change its migration policy and practice. This is all the more necessary now that Greece has taken on additional responsibilities by holding the Presidency of the Council of the European Union. I therefore welcome as a first positive step the Greek authorities' ongoing investigations on push-backs and alleged ill-treatment of migrants, as well as their commitment to share with me the outcome of these investigations’.

Read the letter of the Commissioner, the replies by the Greek Ministers, and the Council of Europe press release.

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National Developments

Belgium: Constitutional Court partially annuls the Belgian law that restricted appeal rights of asylum seekers from ‘safe countries of origin’

On 16 January 2014, the Belgian Constitutional Court, following an appeal by several associations, partially annulled the law of 15 March 2012, because it does not give suspensive effect to an appeal by rejected asylum seekers from ‘safe countries of origin’.

According to the law, the Commissioner-General for Refugees can decide not to take into consideration applications of asylum seekers from a safe country of origin. Against this decision, only an annulment appeal, which looks only at the legality of the decision, is possible before the Aliens Litigation Council. Before this court, the asylum seeker is not allowed to submit any new elements and the appeal is not automatically suspensive. However, in cases of imminent risk of deportation, asylum seekers can lodge an appeal in extreme urgency to have the deportation order suspended. In a number of judgments, the Aliens Litigation Council has considered that such an appeal must have suspensive effect until it has decided on the request for suspension.

However, the Belgian Constitutional Court has now ruled [at B.8.6] that this does not constitute an effective remedy under Article 13 ECHR and the jurisprudence of the ECtHR. This is because the suspensive effect of the extreme urgency appeal is not explicitly stipulated in the law. Therefore, there is no effective guarantee that the Aliens Office, responsible for carrying out expulsions, will comply with the jurisprudence of the Aliens Litigation Council. The Court in addition criticised the fact that ‘safe country of origin’ appellants to the Aliens Litigation Council do not have the opportunity to present any new evidence concerning their asylum claim, because the appeal is limited to an examination of the legality of the first instance decision.

The principle of a ‘safe country of origin’ was first introduced in Belgian legislation by the law of 15 March 2012. Article 57/6/1 of the Act provides that this list should be fixed at least once a year. On 5 May 2013, the Royal Decree containing the safe country list was published in the Belgian Official Gazette. The safe countries include Serbia, Montenegro, Albania, Kosovo, Bosnia and Herzegovina, Macedonia and India.

Under this law, nationals of ‘safe’ countries are subjected to an accelerated procedure, in which their cases are prioritised by the Commissioner General for Refugees and Stateless Persons (CGRA) and resolved within 15 working days. The right to reception - i.e. housing, food etc. - for ‘safe country’ asylum seekers is removed following a refusal at first instance, while the other asylum seekers enjoy reception both at first instance and on appeal.

Based on an unofficial ECRE translation.

Read the judgment of the Belgian Constitutional Court.

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Ireland: Irish High Court rules that removal of family from home for deportation was unlawful

The Irish High Court declared on 17 December 2013 in Omar -v- Governor of Cloverhill Prison [2013] IEHC 579 that the actions of the Irish Gardaí (police) when carrying out a deportation were unlawful. In this case, the police, without an arrest warrant, instructed a family, in their home, to accompany them to Dublin airport, late at night, so that they could be deported. The High Court found that personal liberty and the inviolability of the dwelling - both fundamental constitutional rights in Ireland - were breached.

Hogan J stated:

28. There are, nevertheless, features of the entire episode which are unsettling and, candidly, disquieting. Who could not but be deeply troubled by the late night knock on the door, the absence of a search warrant, an exchange with surprised parents in their pyjamas, the rousing of a young boy from his sleep, the bundling of that boy into a Garda car and the driving of the boy with his family in that car over two hundred kilometres through the night and the holding of the family (including the boy) in a place of the detention at an airport?

29. … It is not altogether clear to me what (if any) steps were taken to safeguard his welfare. It is, however, impossible to believe that this entirely innocent young boy did not find the entire episode bewildering, traumatic and frightening. It is simply distressing beyond words to think that a State committed to safeguarding the best interests of children would ever contemplate subjecting a young boy of seven years and six months to such an ordeal, even if he was not an Irish citizen and even if he had no right to be in the State.

Read the judgment of the Irish High Court.

The Weekly Legal Update would like to thank Nick Henderson, the Irish ELENA coordinator, for informing ECRE about this judgment. 

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Call for applications

Newcastle Law School: PhD Scholarships available for the 2014/2015 academic year 

Applications are invited from applicants with an interest in pursuing a PhD in any area of Law in which the School is able to offer supervision. Applicants must have at a minimum either a very good upper-second-class or first-class undergraduate degree in Law and a very good upper-second-class or first-class Master’s degree (or equivalent). Applications will be considered on their merits, including a publication record, professional qualifications and/or relevant work experience.

Further information on the North East Doctoral Training Centre (NEDTC) Studentships and the Northern Bridge Doctoral Training Partnership (NBDTP) Studentships is available. In addition to the Research Councils-funded Studentships, Newcastle Law School is also funding one PhD Studentship available for the 2014/15 academic year. The deadline for applications is 17th February 2014, 17:00 UK time.

For further information, please contact the Director of Postgraduate Research Degrees, Dr Maria-Teresa Gil-Bazo at: maria-teresa.gil-bazo@ncl.ac.uk

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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