ELENA Weekly Legal Update (EWLU)

11 December 2015


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

European Court of Human Rights

Z.H. and R.H. v. Switzerland (no. 60119/12) [Article 8], 8 December 2015

The case of Z.H. and R.H. v. Switzerland (press release here) relates to two Afghan nationals who had a religious marriage ceremony in Iran in 2010, when Z.H. was 14 years old and R.H. was 18 years old. They applied for asylum in Switzerland in 2011. The Federal Office of Migration rejected their claims on the basis that Italy, which had registered asylum claims from them in the past, was responsible pursuant to the Dublin II Regulation. They were deemed not to have family life for the purposes of Article 8 ECHR or to be family members under the Dublin II Regulation, given that they had no formal evidence of their marriage, it was illegal under Afghan Civil Code, and it was contrary to Swiss public policy, as sexual intercourse with a child under 16 was a crime. Z.H. was therefore expelled to Italy after rejection of his appeal, with R.H. remaining in Switzerland due to failures by the authorities to comply with time-limits for her removal to Italy. 

They lodged an application before the ECtHR alleging that R.H.’s expulsion to Italy violated Articles 3 and 8 ECHR and there was no effective national remedy, contrary to Article 13. Once R.H. turned 17, the authorities recognised that family life subsisted between the applicants so they should benefit from a joint asylum procedure. Subsequently, their religious marriage was judicially recognised by a Swiss Court and they were both granted asylum. As such, solely the Article 8 aspect of their complaint was deemed admissible.

The Court considered that Article 8 did not impose an obligation to recognise a marriage contracted by a 14 year old, in view of Article 12 ECHR which was deferent to national law on marriage rights. At the time of Z.H.’s removal the Swiss authorities were justified in considering that the applicants were not married. In any event he returned to Switzerland after three days following which he was de facto allowed to remain in Switzerland despite his illegal presence, and was able to request a re-examination of his asylum application. Referring to its judgment in A.S. v. Switzerland the Court considered that overall a fair balance had been struck between the personal interests of the applicants in remaining together pending the outcome of R.H.’s asylum application and the public order interests of the State in controlling immigration. It therefore found no violation of Article 8. 

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A.T.H. v. the Netherlands (no. 54000/11), 17 November 2015, inadmissibility decision 

The case of A.T.H. v. the Netherlands relates to an Eritrean national who was granted subsidiary protection in Italy, having claimed asylum in 2007 under a false identity. She left Italy prior to the expiry of her residence permit as she was destitute and had no material assistance.  She claimed asylum in the Netherlands in 2009 which was rejected as Italy was deemed responsible under the Dublin II Regulation, and her appeals against this decision were dismissed.

She lodged an application with the ECtHR alleging that transfer would be contrary to Article 3 ECHR on account of the reception conditions for asylum seekers in Italy, in particular as she had a minor daughter, and had been diagnosed with HIV. Interim Rule 39 measures were granted to prevent her transfer. Following a number of requests for further information from both governments, including information from the Dutch authorities on their practical implementation of Tarakhel v. Switzerland, the Court lifted the Rule 39 indication in March 2015.

In August 2015, the Netherlands submitted to the ECtHR a circular letter sent by the Italian interior ministry to Dublin Units in other Member States on 8 June 2015 , informing of its revised policy relating to transfers of families with children. It then scheduled the applicant’s transfer to Italy, having received a guarantee as to accommodation and family unity from the Italian Dublin Unit and the details of their reception. The Dutch authorities informed the Italian authorities of the applicant’s health problems on the transfer documentation, and stated their assumption that the applicant and her daughter would be accommodated in a SPRAR-project.

The applicant requested the ECtHR to issue a fresh Rule 39 indication to prevent her transfer, arguing that the guarantees were generic and inadequate. She highlighted the insufficient number of places for families with children in the SPRAR projects (161), in comparison to the number of arrivals in Italy, arguing that she was at risk of destitution and violation of Article 2 and 3 ECHR due to poor living conditions in Italy. The Rule 39 application was rejected on 3 September 2015.

Reiterating its findings in Tarakhel, the Court noted that the applicant was a member of a particularly vulnerable group taking into account her medical condition, and her situation as a single mother with a minor daughter. However it found that the applicant had not established that she would not be given a SPRAR reception place or denied access to adequate healthcare, in view of the fact that the Italian authorities had been informed of the transfer of her and her daughter and her condition. It further found no basis to the allegation that she would not have access to resources in Italy, as an asylum seeking single mother. It stated that it was open to the applicant to lodge a fresh application to the Court should this be necessary. It concluded that there was no real risk of harm severe enough to fall within the scope of Article 3 and declared the application manifestly ill-founded and inadmissible. 

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L.N.T. v. the Netherlands and Italy (no. 28686/14), 17 November 2015, decision to strike out case

A committee of the ECtHR has decided to strike out the case of L.N.T. v. the Netherlands and Italy. The applicant is an Eritrean national who claimed asylum in the Netherlands but faced transfer to Italy pursuant to the Dublin II Regulation. She was granted an interim measure to prevent this, and argued that such transfer would violate her rights under Articles 3, 8 and 13 ECHR as she was pregnant which increased her vulnerability, her husband was in the Netherlands and she argued there was no effective remedies for addressing the lack of care and reception facilities which asylum seekers find themselves when staying in a reception centre in Italy. After the case was communicated and both governments were invited to submit their observations in light of the judgment in Tarakhel v. Switzerland; the Netherlands government gave the applicant the opportunity to file a fresh asylum request in the Netherlands and decided not to transfer her to Italy. She informed the Court that she did not wish to maintain her application and it was struck out unanimously, also ending the Rule 39 measures. 

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European Union

European Commission: Infringement procedures relating to the Common European Asylum System

The European Commission has adopted 8 infringement decisions concerning the failure of Greece, Croatia, Italy, Malta and Hungary to correctly implement the Common European Asylum System.

Letters of Formal Notice have been sent to Greece, Croatia and Italy for non-implementation of the Eurodac Regulation. Reasoned opinions have also been sent to Greece and Malta for non-communication of national measures to transpose the recast Asylum Procedures Directive and the recast Reception Conditions Directive, given that neither country responded to Letters of Formal Notice sent on 23 September 2015.
In relation to Hungary, a Letter of Formal Notice has been sent opening an infringement procedure concerning the recently adopted Hungarian asylum legislation. This follows an administrative letter outlining the Commission’s preliminary concerns and the response of the Hungarian government.The Commission still has concerns that the provisions are incompatible with the recast Asylum Procedures Directive as there is no possibility to refer to new facts and circumstances in the context of appeals and because there is no automatic suspensive effect for appeals which forces applicants to leave the territory prior to the expiry of the time limit to lodge an appeal, or before an appeal has been heard. In addition, given that judicial review of a negative asylum decision makes a personal hearing for applicants optional, and judicial decisions may be taken be court secretaries, there are concerns that the fundamental right to an effective remedy under Article 47 of the Charter are being breached. The Commission is also concerned that procedures in fast-track criminal proceedings for irregular border crossings fail to meet standards contained in the Directive on the right to interpretation and translation in criminal proceedings.

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European Commission: Infringement procedures relating to the Common European Asylum System

Barbara Spinelli, MEP for Italy, has tabled a question to the European Commission for a written answer in relation to the compatibility of the establishment and management of hotspots with EU law. The same question was co-signed with 22 other MEPs of differing political groups on 1 December 2015. It focuses on Lampedusa, and raises concerns in particular about inadequate asylum procedures at this hotspot.  
Another question was tabled to the European Council by Barbara Spinelli and others in relation to the implementation of the Council Decisions on the relocation of 160,000 asylum seekers from Italy and Greece. It highlights that Member States have not adequately followed up on these Decisions and asks what steps the Council intends to take to quickly relocate asylum seekers given the urgency of the humanitarian situation.
Written answers are due within six weeks of notification of the question to the addressees. 

Council of Europe

Committee of Ministers: decision on execution of M.S.S. and Rahimi groups v. Greece 

The Council of Europe Committee of Ministers examined the implementation in the M.S.S. and Rahimi groups of cases against Greece (no. 30696/09 and 8687/08) at its 1243rd meeting. In its decision, it welcomed the creation of a new administrative authority for immigration and the drafting of a new action plan. It noted the increase in accommodation capacity for asylum seekers and called on the authorities to intensify efforts to ensure the sustainable operation of open reception facilities and provision of services, ensuring that reception facilities met adequate standards. It strongly invited the Greek authorities to pursue efforts to ensure that all unaccompanied minors are referred to special accommodation centres and assisted by special personnel. The Committee will consider other issues with regard to the living conditions of asylum seekers and unaccompanied minors in Greece, at the latest, at its meeting in December 2016.

The Committee had before it a submission by Amnesty International dated 27 November 2015 which shared its concerns regarding inadequate first reception services for refugees and asylum seekers in Greece, conditions on the border with FYROM, lack of accommodation capacity, failure to identify unaccompanied children and their detention and the risk of police violence and racist attacks. 

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United Nations

UNICEF: Child specific country of origin reports on Afghanistan, Albania, Guinea and Morocco 

UNICEF national committees in the Netherlands, Belgium and Sweden have published child notices which provide legal and practical information on the living conditions in the countries of origin of children who have fled or been trafficked to Europe.

These are aimed at decision makers and other asylum professionals to better support quality decisions and are guided by the principles in international human rights law, in particular the UNCRC and the fundamental principle of the best interests of the child.

To date, reports have been published on Afghanistan, Morocco (French only), Guinea (French only) and Albania

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National Developments

Belgium: Brussels Labour Court condemns Fedasil for failure to accommodate minor Afghan asylum seeker

This case relates to a 17 year old national of Afghanistan who arrived in Belgium as an unaccompanied minor. On 30 November 2015 he presented himself to the Immigration Office in Brussels to claim asylum. He was given a ‘convocation letter’, inviting him to return to the Office on 17 December to officially register his asylum claim. On the same day, his lawyer sent a fax to the Immigration Office making a formal demand for the applicant’s asylum claim to be registered, attaching an application form requesting that he be granted international protection. He requested accommodation from Fedasil, the federal agency for the reception of asylum seekers, but this was refused on the basis that he did not have the ‘annex 26’ document, which is official proof of lodging an asylum claim.

He lodged an application to the President of the Brussels Labour Tribunal for interim measures to condemn Fedasil and the Belgian State to accommodate him, as well as for legal aid. This was deemed inadmissible for not meeting the condition of absolute necessity required for such measures. An appeal was lodged which came before the Brussels Labour Court.  

The Court found that domestic law obliged the federal authorities to treat asylum claims by unaccompanied minors with urgency. It referred to the recent ECtHR decision in V.M. and Others v. Belgium in which a violation of Article 3 was found due to inadequate reception conditions provided to a vulnerable asylum seeking family, forced to live on the streets. The applicant, as a minor living on the streets, was exposed to an extremely serious situation, with a risk of significant harm.

While domestic law provided for material reception conditions to be granted to asylum seekers from the lodging of their claim, with respect for their human dignity, it did not define what this meant, only providing that it must be submitted to the Immigration Office. However, in view of the provisions contained in the recast Asylum Procedures Directive (Article 6(4)) and the recast Reception Conditions Directive (Article 17(1)), there was a prima facie case that the applicant was considered to have applied for asylum on 30 November, by submitting the asylum claim form, and should therefore benefit from material reception conditions.

Therefore the Court ordered Fedasil to immediately accommodate the applicant in a reception centre adapted to his needs, or face a 125 euro fine per day, starting from 3 working days from notification of the judgment. As Fedasil was the responsible authority for accommodating asylum seekers, the Court saw no need to separately condemn the State. This is a temporary urgent measure that does not definitively rule on the legal situation of the parties, and will lapse if the applicant does not attend his appointment on 17 December 2015.

Based on an unofficial ELENA translation. The ELENA Weekly Legal update would like to thank Franz Geleyn and François Roland for providing us with this judgment.

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ECRE: Updated AIDA Country reports on Cyprus, Belgium and Croatia


The updated AIDA report on Cyprus, written by Future Worlds Centre, details reforms in the asylum procedure taking effect in July 2015. A newly established Administrative Court has taken over as the first instance judicial review authority for asylum decisions, and Is able to examine decisions on both points of fact and law.

An age assessment procedure was  initiated in May 2015 for unaccompanied children, which depends solely on intrusive medical tests with a significant margin of error and which has found the vast majority of all individuals tested to be between 18 -19. Children have been forcibly evicted from the shelters with many disappearing. In addition, the decision determining the age of the child is not provided in writing and there is no procedure to challenge the authorities’ decision.

Finally, the newly adopted policy on detention of asylum seekers, according to which the only asylum seekers detained are those who submit an application after they have been arrested and detained, is still in place. The new policy stipulates that the applications of detained asylum seekers undergo a fast-track examination, however, the deadlines are not always followed and intervention is often necessary to highlight that the timeframe has elapsed and the detained asylum seeker must be released.


The updated AIDA report on Belgium, written by CBAR-BCHV, details the challenges posed to the Belgian reception system following a serious rise in the number of asylum applications in the second half of 2015. Since August 2015, more than 10,000 new accommodation places have been created, however adapted special reception needs cannot be provided for a rising number of vulnerable asylum applicants and the quality of the assistance (social, psychological, legal) is under threat.

Moreover, access to the asylum procedure itself has become more problematic. Registration delays for asylum applications at the Aliens Office are becoming longer week by week, seriously exceeding the maximum delay of 10 days allowed by the recast Asylum Procedures Directive in exceptional circumstances. The number of registrations per day seems to be limited by the State Secretary to keep the pressure from the reception network. A communication campaign with personalised letters directed at certain groups (Iraqis, Afghans) intended at deterring them from (insisting on) applying for asylum, further puts pressure on the unhindered enjoyment of the right to asylum.

Finally, access to qualitative legal aid is being further restricted in practice by stricter pro Deo (free) lawyer designation rules, by the announced cuts in their remuneration and by serious cuts in public financing for NGOs assisting asylum applicants and protection status holders.


The updated AIDA report on Croatia, written by the Croatian Law Centre, documents the reform of the asylum system brought about by the Law on International and Temporary Protection, which entered into force in July 2015. The law has introduced numerous changes, including a reduction of the grounds for applying the accelerated procedure in line with the recast Asylum Procedures Directive and defining grounds for the detention of asylum seekers in line with the recast Reception Conditions Directive. The notion of “risk of absconding”, related to detention for the purposes of transferring an asylum seeker under the Dublin Regulation, is also defined with regard to several criteria.

Following the intensification of the refugee crisis in September 2015, Croatia has arranged the accommodation of asylum seekers only in Kutina, one of the two reception centres in the country. At the same time, plans to establish within the Croatia’s existing detention centre a special facility for vulnerable groups i.e. children, initially foreseen for the end of the year, were also completed in September.

As of 15 October 2015, Croatia had registered 162 asylum applications this year.

Based on articles originally published on the AIDA website on Cyprus, Belgium and Croatia

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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 (, or Julia Zelvenska (

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