ELENA Weekly Legal Update - 21 February 2014
View this email in your browser

21 February 2014


European Court of Human Rights
European Union
National Developments NGOs

European Court of Human Rights

Upcoming judgments of interest, 27 February 2014

Josef v. Belgium (no. 70055/10) [Articles 3, 8 and 13] (proposed removal of mother and three children to Nigeria)

Zarmayev v. Belgium (no. 35/10) [Articles 3, 5 and 6] (detention and proposed extradition of Chechen to Russia)

Read the Press Release of forthcoming judgments of the ECtHR.

Back to top

European Union

Court of Justice: Upcoming judgment of interest, 27 February 2014

C-79/13, Saciri and Others (provision of financial allowance to asylum seekers pursuant to Article 13(5) of the Reception Conditions Directive and scope of obligation to provide material reception facilities).

Read the reference for preliminary ruling.

Back to top

Parliament: LIBE Committee votes to approve Regulation on Frontex-coordinated sea operations

The Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 20 February 2014 voted overwhelmingly in support of the compromise text on a Regulation for Frontex-coordinated surveillance of external sea borders. Operations not co-ordinated by Frontex are not covered. The proposed Regulation establishes rules on interception, search and rescue in territorial waters and on the high seas, disembarkation, and the protection of fundamental rights of migrants in distress at sea. The compromise will now be put to a plenary vote in the European Parliament in April 2014.

The rules impose a clear duty on units participating in Frontex operations to ensure the safety (Article 3) and human dignity (Article 4.4b) of intercepted or rescued persons. The proposed Regulation also provides that any operational plans for Frontex-coordinated operations must contain procedures to ensure that persons with international protection needs, victims of trafficking, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance (Recital 9, paragraph 2).

Under Article 9, ‘Member States shall observe their obligation to render assistance to any vessel or person in distress at sea’. Recital 7 states that ‘the shipmaster and crew should not face criminal sanctions for the sole reason of having rescued persons in distress at sea and brought them to a place of safety’.

In addition, the proposed Regulation prohibits the disembarkation of intercepted or rescued persons in a country where they would risk serious harm (Article 4.1). Before disembarkation, units must use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand, and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement (Article 4.3). 

The compromise allows for Member States to conduct vessels or persons on board intercepted on the high seas - waters beyond the territory of any state - to a third country (Article 7.1a.(c)). Member States can also 'alter the course of' and 'escort' a vessel intercepted in the territorial sea of a Member State to a destination outside the territorial sea of that Member State (Article 6.1a.(b)). Subject to the principle of non-refoulement, disembarkation may take place in the third country from which the vessel is assumed to have departed (Article 10.1(b)). The operational plan to be adopted before the launch of each Frontex operation must include details on the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts, but only when necessary (Article 4.3, paragraph 2).

Read the full text of the proposed Regulation and the press release of the LIBE Committee.

Back to top

United Nations

UNHCR: States should suspend forcible returns to South Sudan

In a position published on 11 February 2014, UNHCR calls for a suspension of forcible returns to South Sudan until the security situation has improved. UNHCR also advises that many fleeing South Sudan are likely to qualify for refugee status. The position has been adopted in view of the political and ethnic conflict in the country since December 2013.

According to statistics of the UN Office for the Coordination of Humanitarian Affairs (OCHA), as of 6 February 2014, an estimated 738,000 people have been internally displaced by the conflict since 15 December 2013. 130,400 refugees from South Sudan have fled to neighbouring countries, in particular Ethiopia, Kenya, Sudan, and Uganda. UNHCR reports that thousands of civilians have been killed as a result of the conflict, and hundreds of thousands have lost their livelihoods and access to basic services.

Qualifying the recommendation of international protection for people fleeing South Sudan, UNHCR notes that some individuals may be excluded on account of having committed acts so grave as to render them undeserving of refugee status. Such acts are defined in Article 1F of the Refugee Convention, and include war crimes, serious non-political crimes, and acts ‘contrary to the purposes and principles of the United Nations’.

Read UNHCR’s position note.

Back to top

National Developments

United Kingdom: Supreme Court rules that appellants challenging Dublin transfer do not need to prove 'systemic deficiencies' in destination State

In EM (Eritrea) v SSHD [2014] UKSC 12, delivered on 19 February 2014, the UK Supreme Court unanimously decided that asylum seekers who appeal against their transfer to another Member State under the Dublin Regulation do not need to prove ‘systemic deficiencies’ in the asylum system of the destination State in order to successfully prevent removal.

This decision overturns the Court of Appeal’s October 2012 judgment. The Supreme Court sets out what it regards as ‘the correct approach’ [58]: Dublin returns must not take place where ‘substantial grounds have been shown for believing that the person concerned … faces a real risk’ in the destination Member State of inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR).

The Supreme Court held that proving ‘systemic deficiencies’ in the reception conditions and asylum procedure is but one route to establishing a real risk of ill-treatment, rather than ‘a hurdle to be surmounted’ [63]. A ‘rigorous assessment’ of both the general situation and the individual’s personal circumstances, including his or her previous experiences, is required [70].

The Supreme Court concluded that the Court of Justice of the European Union, in N.S. and Others, did not intend to make ‘systemic deficiencies’ a necessary condition to stop a Dublin return [55].

The judgment arises from the joined appeals of three Eritrean asylum seekers and one from Iran against their return to Italy under the Dublin Regulation. With the correct legal approach now clarified by the Supreme Court, the factual merits of the individual cases will be dealt with by the High Court to determine whether their removal to Italy is prohibited by the risk of ill-treatment.

The ruling comes a week after the Grand Chamber of the European Court of Human Rights heard the case of Tarakhel v. Switzerland (covered in the Weekly Legal Update of 14 February 2014) which will decide whether the Dublin removal of an Afghan family to Italy would violate their Convention rights.

Read the judgment of the Supreme Court and the official Press Summary.

Back to top

United Kingdom: Upper Tribunal gives country guidance on persecution risk to same-sex oriented males in India

In MD (same-sex oriented males: risk) India CG [2014] UKUT 00065 (IAC), signed on 26 January 2014, the Upper Tribunal sets out country guidance on the risk to homosexuals returned to India. The guidance arises out of an appeal by a homosexual male from India who applied in the UK for refugee status in 2007, fleeing inter alia police beatings for alleged prostitution. The refusal of his application in the First-tier Tribunal was successfully appealed in light of the UK Supreme Court decision in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, which clarified the law on the relevance of risk-reducing concealment of sexual orientation. His case was remitted to the Upper Tribunal, which set aside the legal analysis of the First-tier Tribunal, preserved the initial findings of fact and credibility, and certified the case for country guidance.

The hearing for the country guidance was delayed pending the Indian Supreme Court’s December 2013 decision in Koushal and another v Naz Foundation and Others (Civil Appeal No. 10972 of 2013), which upheld as constitutional section 377 of the Indian Penal Code of 1860. This is the provision in Indian law which criminalises same-sex sexual activity even in private.

The Upper Tribunal’s country guidance indicates that though section 377 is still in force, prosecutions under this section are and have always been ‘extremely rare’. In addition, ‘some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police and the general populace; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory’.

The guidance also states that ‘Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow … It would not, in general, be unreasonable or unduly harsh for an open same-sex oriented male (or a person who is perceived to be such), who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city within India. … India has a large, robust and accessible LGBTI activist and support network, mainly to be found in the large cities’.

The Upper Tribunal dismissed the appeal on all grounds, and concluded that it would be proportionate to require the appellant to return to India to make an application for entry clearance.

Read the judgment of the Upper Tribunal.

Back to top


European Database of Asylum Law: Papers and videos from EDAL Conference on the EU Asylum Acquis available online

The conference papers and videos of various speakers at the January 2014 EDAL Conference, entitled ‘Reflections on the Current Application of the EU Asylum Acquis’, are now available online.

Access the papers and videos on the EDAL website.

Back to top

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