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ELENA Weekly Legal Update (EWLU)

10 April 2020
The EWLU will take a break and return on 24 April 2020
 

Summary


European Union  National Developments  ECRE

European Union


CJEU: Poland, Hungary, and Czech Republic failed to fulfil obligations under Council Relocations Decisions

On 2 April 2020, the Court of Justice of the European Union published its judgment in the joint cases of the Commission v Poland, Hungary and the Czech Republic (C-715/17, C-718/17 and C-719/17) concerning the reliance on public order and national security considerations under Article 72 TFEU to justify non-compliance with relocation obligations. The opinion of Advocate General Sharpston was published on 31 October 2019.

In accordance with Article 5(2) Council Decisions 2015/1601 and 2015/1523 (“the Relocation Decisions”) European Member States are obliged to indicate the number of applicants of international protection who can be relocated to their territory. Poland and the Czech Republic initially indicated the number of individuals that would be relocated to their territory but failed to fulfil the subsequent obligation to relocate the individuals pursuant to Article 5(4) of the Relocation Decisions, while Hungary failed to indicate the number of individuals it could relocate. The Commission called on the Member States to communicate at least every three months the number of applicants who can be relocated and later invited the Member States to quickly adopt the necessary measures in order to make relocation commitments. After receiving no response, the European Commission sought a declaration from the Court that Poland, Hungary and Czech Republic had failed to fulfil obligations under the Relocation Decisions.

The Court observed that the relocation of applicants of international protection is complex, requiring coordination between Member States in order to have tangible effects, and is only possible if Member States commit to fulfilling their obligations. It also noted that a failure to fulfil obligations under Article 5(2) would consequently lead to an infringement under Article 5(4). The Court stated that Article 5 is to be interpreted strictly and does not confer on States the power to depart from provisions of EU law based solely on the reliance of interests linked to maintaining law and order and safeguarding internal security pursuant to Article 72 TFEU without proving that this is necessary in order to exercise their relevant responsibilities.

The importance of securing internal order was not disregarded by the Council, as the Relocation Decisions included the possibility to deny relocation if applicants with a risk profile were identified. Indeed, the competent authorities of the Member State of relocation can rely on serious reasons or reasonable grounds relating to the maintenance of their national security or public order only following a case-by-case investigation of the danger actually or potentially represented by the applicant for international protection concerned for those interests.

Despite this, the Court observed that the obligation set out under Article 5(2) Relocation Decisions was unconditional and does not provide for States to rely on the existence of a danger to national security or public order to justify its non-application. It therefore concluded that Poland and Hungary could not rely on Article 72 TFEU to justify the refusal to act on this obligation. In response to the Czech Republic’s argument regarding the malfunctioning and ineffective nature of the Relocation mechanisms, the Court concluded that the alleged lack of cooperation of Italy and Greece does not render the mechanism ineffective and should be solved in the spirit of cooperation and mutual trust. As such, it concluded that Poland, Hungary and Czech Republic had failed to fulfil obligations under Article 5(2) Relocation Decisions and subsequent obligations under Article 5(4).

A full legal summary of this judgment can be found on the EDAL website, managed by ECRE.

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CJEU: Request for preliminary ruling (Finland) on right of citizens to move freely with EU territory

The Korkein oikeus (Finland) recently requested a preliminary ruling from the CJEU (C-35/20) on right of EU citizens to move freely within the territory of the European Union. The referring court invited the CJEU to consider the following questions:

1.Does EU law, in particular Article 4(1) of Directive 2004/38 and Article 21 of Regulation No 562/2006 (Schengen Borders Code), or [Or. 14] the right of EU citizens to move freely within the territory of the European Union, preclude the application of a national provision requiring a person (whether or not an EU citizen), under threat of criminal penalties, to carry a valid passport or other valid travel document when travelling from one Member State to another by pleasure boat via international waters without entering the territory of a third country?

2.Does EU law, in particular Article 5(1) of Directive 2004/38 and Article 21 of Regulation No 562/2006 (Schengen Borders Code), or the right of EU citizens to move freely within the territory of the European Union, preclude the application of a national provision requiring a person (whether or not an EU citizen), under threat of criminal penalties, to carry a valid passport or other valid travel document upon entering the Member State concerned from another Member State by pleasure boat via international waters without having entered the territory of a third country?

3.In so far as no obstacle within the meaning of Questions 1 and 2 arises under EU law: Is the penalty normally imposed in Finland in the form of daily fines for crossing the Finnish border without carrying a valid travel document compatible with the principle of proportionality that follows from Article 27(2) of Directive 2004/38/EC?

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CJEU: Request for preliminary ruling (the Netherlands) concerning new elements or findings in asylum applications

The Rechtbank Den Haag, zittingsplaats’s-Hertogenbosch (the Netherlands) recently requested a preliminary ruling from the CJEU on the interpretation of new elements or findings in subsequent asylum applications (C-921/19). The following questions are referred:

1.Is the determination by a determining authority of a Member State that original documents can never constitute new elements or findings if the authenticity of those documents cannot be established compatible with Article 40(2) of the Procedures Directive, (1) read in conjunction with Article 4(2) of the Qualification Directive (2) and Articles 47 and 52 of the Charter of Fundamental Rights of the European Union? If not, does it make any difference if, in a subsequent application, copies of documents or documents originating from a non-objectively verifiable source are submitted by the applicant?

2.Must Article 40 of the Procedures Directive, read in conjunction with Article 4(2) of the Qualification Directive, be interpreted as allowing the determining authority of a Member State, when assessing documents and assigning probative value to documents, to distinguish between documents submitted in an initial application and those submitted in a subsequent application? Is it permissible for a Member State, when submitting documents in a subsequent application, no longer to comply with the obligation to cooperate if the authenticity of those documents cannot be established?

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Update on the current activities of the CJEU

On 3 April 2020, the CJEU published a press release providing an update on the current activities of the Court as a result of the pandemic measures.

Updates from the Court include, inter alia, that all hearings at the Court of Justice and General Court scheduled between 16 March - 15 May 2020 are postponed. Moreover, various measures have been introduced to ensure the processing of cases is not interrupted: decisions are taken using a written procedure; questions addressed to the parties in writing; specific ways of holding hearings for the delivery of judgments and the reading of Opinions; and simplified conditions for opening an e-Curia account. However, the Court has noted that priority will be given to particularly urgent cases to ensure judicial activity may continue where possible. 

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New reports from the FRA on human rights and public health in fighting COVID-19 and Children in Migration 2019

On 8 April 2020, the Fundamental Rights Agency published a report entitled ‘COVID-19 pandemic in the EU - Fundamental Rights Implications’.

The report outlines the various measures taken by EU Member States to address the pandemic in order to highlight the human-rights respectful approaches that other States may learn from. There are four key areas of focus: daily life and government responses to the crisis; the available protection for vulnerable groups; the increase in incidents of racism and xenophobia; challenges relating to disinformation and data protection about the outbreak. 

Moreover, on 30 March 2020, the Fundamental Rights Agency published a report on the challenges to fundamental rights of children in migration. The report outlines a number of key findings including, inter alia: challenges of reaching and entering the EU, including the risk of death or injury and collective expulsions at sea; the arrival and stay once in the EU, including reception capacity and living conditions; and the detention and return of children.

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National Developments


Italy: Recognition of humanitarian protection due to the deterioration of the quality of life in Ukraine

The Court of Appeal of Bologna (Italy) recently granted humanitarian protection to a Ukrainian citizen from the Ternopil region, in the light of the deterioration of the quality of life in the country due to the ongoing conflict in the Donbas region.

The Ministry of Interior had contested the Tribunal’s decision recognising humanitarian protection, arguing, inter alia, the inconsistency of the ruling due to the fact that the conflict was not present in the applicant’s region.

However, the Court of Appeal confirmed the first instance decision, considering that, despite its geographical limitation, the conflict is having a high impact on the economy and public services of the whole county, as that the majority of the public resources are now allocated to the war effort. The Court concluded that in case of return to Ukraine, the applicant would not be able to fulfil her primary needs due to the lack of family tie and the current economic depression caused by the war. For these reasons, the appeal of the Italian Ministry of Interior was rejected.

Based on an unofficial translation by the EWLU team.

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Switzerland: Application for refugee status must be reconsidered in light of new evidence relating to applicant’s relatives

On 24 March 2020, the Federal Administrative Court published its judgment in case A. v State Secretariat for Migration (D-1003/2020). 

The applicant is a Sri Lankan national of Tamil ethnicity who was taken for questioning by Sri Lankan soldiers after interfering with political posters. He was ordered to present himself for checks every Sunday and alleges that he was beaten and sexually assaulted by soldiers, forcing him to flee the country. His application for refugee status in Switzerland was rejected and his expulsion was subsequently ordered. On appeal, the applicant submitted further evidence relating to positive asylum decisions of his relatives in Switzerland. The appeal was dismissed on the grounds that the new evidence did not constitute grounds for reconsideration of his asylum claim.

The Federal Administrative Court noted that during the original asylum proceedings, the applicant was unable to provide credible evidence to account for his flight from persecution in Sri Lanka. However, it added that it is the job of the asylum authorities to consult the asylum files of the applicant’s close relatives and to address any relevant statements. It found that the newly provided transcripts of interviews involving relatives of the applicant submitted by the applicant qualified as substantial changes due to the close connection between the asylum claims and concluded that the applicant’s asylum proceedings must be reassessed with reference to the newly presented evidence. 

Based on an unofficial translation by the EWLU team. 

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ECRE


New EDAL Journal: Borders, procedures and rights at Röszke: Reflections on case C-924/109 (PPU) 

The EDAL Journal has today published an article by Galina Cornelisse, associate professor of EU and public international law VU University on case C-924/109 which raises important questions regarding the conformity with EU law of the asylum and return procedures at the border transit zone between Hungary and Serbia, at Röszke.
The article explains some of the legal intricacies surrounding border procedures in transit zones under EU law and the constraints of EU law.

The full article can be read on the EDAL website. Many thanks to Professor Cornelisse (LLM Leiden University, PhD European University Institute) for sharing this work with the EWLU team.

This article will be the last one published in the EDAL Journal. We are very grateful for everyone who contributed with interesting and timely articles. We now hope we can focus all our energy into sharing the latest news on jurisprudence and EDAL summaries as widely as possible, always including the most recent and important developments.

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Updated Belgium AIDA report

The updated AIDA country report on Belgium is now available online.

The report documents developments in the area of asylum procedures, reception conditions, detention of asylum applicants and content of international protection in 2019. It is noted, inter alia, that 2019 was marked by a significant delay in the processing of asylum applications, and the lack of reception accommodation, resulting in asylum applicants left homeless and destitute. Despite the numerous warnings of the federal reception agency for asylum seekers Fedasil as well as civil society actors, a new reception crisis emerged in 2019.

Moreover, the Belgian government further continued its engagement to increase detention. In 2019 an open reception centre (Holsbeek) has been turned into a closed centre for women and two additional detention centres will open in 2020. While the current detention capacity is 660 places, these plans will bring Belgium’s detention capacity to 1,066 places by 2022. However, no more families with children have been detained, following a judgment of the Council of State.

This is an edited version of an article originally appearing on the AIDA website, managed by ECRE. Many thanks to Petra Baeyens, senior legal officer at ECRE, for assisting with the summary.

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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 (jzelvenska@ecre.org).






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