ELENA Weekly Legal Update (EWLU)

8 April 2016


European Court of Human Rights European Union Council of Europe National Developments NGOs

European Court of Human Rights

I.A.A. and Others v. the United Kingdom (no 25960/13) [Article 8], 31 March 2016 – inadmissibility decision 

The case of I.A.A. and Others relates to five Somali nationals who comprise 4 biological siblings and an adopted sibling. Their mother left Somalia to join her second husband in 2004 in the UK, where he had been granted refugee status, leaving the applicants in the care of her sister in Somalia. The child of the applicants’ mother and her second husband was granted entry clearance in 2005. In 2006 the applicants moved with their aunt from Somalia to Ethiopia. In 2007, their mother divorced her second husband. In 2008, two of the applicants’ siblings were granted entry clearance to the UK for family reunion, on appeal. Around the same time their mother’s sister returned to Somalia, leaving the applicants in the care of their older sibling, aged 16. The applicants then applied for entry clearance to the UK. This was dismissed by the authorities as well as on appeal. The applicants submitted an application to the ECtHR complaining that the UK government’s refusal to grant them entry into the UK for the purpose of reuniting with their mother violated their right to respect for family life guaranteed by Article 8 ECHR.

The ECtHR reiterated the applicable principles for Article 8 assessments of the balance that must be struck between the competing interests of the individual to develop family life in the UK and the State’s interest in controlling immigration. Considering the facts closely, it found that the applicants’ mother had not fled a situation of armed conflict when she left for UK, but rather made a conscious decision to leave her children in Somalia to join her second husband. It found that while it would undoubtedly be difficult for the applicants’ mother to relocate to Ethiopia to enjoy family life with the applicants, there were no ‘insurmountable obstacles’ or ‘major impediments’ to her doing so. Although she had formerly been married to a refugee, neither she nor any of her children had been granted refugee status and did not claim to be at risk of ill-treatment in Somalia.

While the UK courts had assessed that it would be in the applicants’ best interests to join their mother in the UK, the ECtHR held that although this principle was paramount, it was not a ‘trump card’. It noted that the applicants were no longer young children, had grown up in the cultural or linguistic environment of their country of origin, lived in a family unity in Ethiopia for nine years with older siblings caring for the younger ones, none of them had been to the UK and they had not lived with their mother for over eleven years.

The ECtHR concluded that the domestic courts had not failed to strike a fair balance between the competing interests at stake and the State had not exceeded its margin of appreciation. It thus rejected the application as manifestly ill-founded.

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European Union

CJEU: Case C-60/16 Request for preliminary ruling from Stockholm Migration Court of Appeal, Mohammed Khir Amayry v Migrationsverket

The Migration Court of Appeal lodged a request to the CJEU for a preliminary ruling on 3 February 2016, with regard to the calculation of time limits for detention for the purpose of transfer under Article 28(3) the Dublin III Regulation.  The questions referred are:

  1. If an asylum seeker is not in detention at the time when the Member State responsible agrees to take charge of him but is detained at a later date — on the ground that only then is the assessment made that there is a significant risk that the person will abscond — may the time limit of six weeks in Article 28(3) of Regulation No 604/2013 1 be calculated in such a situation from the day on which the person is detained or is it to be calculated from another time and if so, when?

  2. Does Article 28 of the regulation preclude, in a situation where an asylum seeker is not in detention at the time when the Member State responsible agrees to take charge of him, the application of national rules which, in Sweden, mean that an alien may not be kept in detention pending implementation [of a transfer] for longer than two months, if there are no serious reasons for detaining him for a longer period, and if there are such serious reasons, the alien may be kept in detention for a maximum of three months or, if it is probable that implementation will take longer due to a lack of cooperation from the alien or it takes time to obtain the necessary documents, a maximum of twelve months? 

  3. If an implementation procedure is recommenced when an appeal or a review no longer has suspensive effect (c.f. Article 27(3)), does a new time limit of six weeks for implementation of the transfer start to run or is there a deduction to be made, for example, of the number of days the person has already spent in detention after the Member State responsible agreed to take charge of him or take him back?

  4. Is it of any importance whether the asylum seeker who appealed against a transfer decision has not himself applied for the implementation of the transfer decision to be suspended pending the result of the appeal (c.f. Article 27(3)(c) and (4))?”

For further information on the legality of detention under the Dublin III Regulation, please see the AIDA Legal Briefing dated June 2015.

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FRA: Opinion on EU common list of safe countries of origin 

The EU Fundamental Rights Agency has issued an opinion concerning the European Commission proposal to establish an EU common list of safe countries of origin. It considers that this may be an effective tool to process applications for international protection that are likely to be unfounded, provided that all relevant safeguards, including those set out in the recast Asylum Procedures Directive are in place to ensure that the fundamental rights of those concerned are respected. The Opinion focuses in particular on the right to asylum, non-refoulement, the principle of non-discrimination, the rights of the child, the right to good administration including the right to be heard, and the right to an effective remedy.

FRA considers that the EU common list of safe countries of origin cannot establish an irrefutable presumption of safety. As such applicants must be given an effective opportunity to rebut the presumption of safety in their case, which requires that they are afforded sufficient time to present their case and legal assistance. A personal eligibility interview with trained personnel must be conducted prior to the decision to respect the right to be heard. Unsafe countries should be excluded from the common list, with assessment of a wide range of sources when considering the safety of conditions in countries of origin proposed for the list. There must also be flexibility to react quickly to suspend countries from the list if there are relevant changes in the circumstances. Furthermore, appeals against rejections based on the common list of safe countries of origin should have automatic suspensive effect and applicants should have access to legal assistance.

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European Commission:  options presented for reform of the Common European Asylum System 

On 6 April 2016, the European Commission issued a Communication presenting various options for the reform of the Common European Asylum System.  This will be followed up with detailed proposals in the coming months.

It consists of five priorities: establishing a fair and sustainable system to allocate responsibility for asylum seekers between Member States, reinforcing the Eurodac system, achieving greater convergence in the EU asylum system, preventing secondary movements within the EU and creating a new mandate for the EU asylum agency (EASO).

Two options are tabled for reforming the Dublin system: to supplement it with a corrective fairness mechanism based on a distribution key which would be used in situations of ‘mass influx’ or to replace it with a new system with responsibility primarily allocated on the basis of a distribution key.

Other proposals include the expansion of the Eurodac system beyond asylum to focus on irregular migration too, transforming the Asylum Procedures Directive to a new Regulation establishing a single common asylum procedure in the EU, replacing the Qualification Directive with a Regulation and changing the Reception Conditions Directive. Greater sanctions are proposed to prevent secondary movement of asylum seekers and beneficiaries of international protection.

For further information, please see the European Commission Communication, Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe and the press release.

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Council of Europe

Commissioner for Human Rights: Report on Cyprus

Niels Muižnieks has issued a report, following his visit to Cyprus on 7-11 December 2015, with a section focusing on the human rights of asylum seekers, refugees and migrants.

The Commissioner notes that although there is a high rate of first-instance positive decisions (76%) in Cyprus the majority of grants relate to subsidiary protection rather than refugee status, including for Syrians, where only 0.04% of asylum seekers were recognised as refugees.

He raises concerns over excessively lengthy delays in processing applications and limitations to free legal aid. Added to this are shortcomings with regard to access to effective remedies as there was no automatic suspensive effect of judicial review before the Supreme Court or procedures before the Administrative Court. The Commissioner also reports on the situation for unaccompanied asylum seeking children, who may remain without adequate care for many months given that they are identified only on the occasion of their first interview. Moreover, he criticises the age assessment procedures in place as well as difficulties that unaccompanied migrant children face in obtaining legal representation.

Muižnieks also addresses the reception of asylum seekers and social integration, in particular deploring the restrictive amendments to family reunification adopted in April 2014. In addition, he observes that very few alternatives to detention are implemented, with asylum seekers and migrants routinely detained for prolonged periods, even where there is no real prospect of removal.

For further information on the asylum system in Cyprus, see the AIDA country report which is up to date as of 27 November 2015.

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National Developments

Greece: Urgent adoption of new law to implement EU-Turkey deal 

On 3 April, Greek Law 4375/2016 which will come into force in two months’ time, was adopted under an urgent procedure. This introduces a number of changes to the institutional framework and the asylum system in Greece, to implement the EU-Turkey, the operation of the hotspots and transpose the recast Asylum Procedures Directive (rAPD). Some of these amendments are discussed below,

Asylum seekers that have already been detained for immigration reasons may remain in detention only under exceptional circumstances, subject to an individualised assessment, necessity and consideration of alternatives to detention for one of five grounds, which  mirror the grounds for detention set out in Article 8(3) of the recast Reception Conditions Directive (rRCD), with the exclusion of Article 8(3)c).  Detention is subject to maximum time periods, which vary depending on the ground for detention. However, new arrivals to the Reception and Identification Centres either at the ‘hotspots’ or on mainland Greece will be confined to these Centres throughout the reception and identification procedure. Given documented practice, asylum seekers may in effect be deprived of their liberty throughout the asylum procedure. This appears to contravene the EU asylum acquis particularly given the non-transposition of Article 8(3)c) rRCD which provides for detention during a border procedure for the purpose of deciding on an applicant’s right to enter the territory.

The grounds for inadmissible applications relating to first country of asylum and safe third country are maintained but the new law lowers the relevant procedural guarantees. Prior to the amendment, the Asylum Service was required to take into account the ‘safety’ principles for a ‘safe third country’ set out in Article 38 rAPD when applying the concept of ‘first country of asylum’. It is no longer required to do so, which means that, for instance, asylum applications from holders of temporary protection in Turkey can be rejected as inadmissible, even if Turkey does not satisfy the criteria of a ‘safe third country’.

Article 60 of the new law provides for a border procedure by which the merits of the asylum application can be examined. The border procedure is therefore not confined to consideration of the admissibility or the substance of claims processed under an accelerated procedure, as required by Article 43 of the rAPD. Furthermore, Article 60(4), a provision which is already in force, enables exceptional measures to be adopted in the event of large numbers of arrivals lodging claims at the border or at Reception and Identification Centres. These allow EASO officials to support national authorities in the conduct of interviews, a deadline of one day for applicants to prepare for the interview, and a maximum time-limit of 3 days for deciding on appeals , with exceptions for vulnerable groups and persons falling within the family provisions of the Dublin III Regulation.

Applicants in detention can appeal against a negative decision within 15 days, whilst those in a border procedure or Reception and Identification Centre must appeal within 5 days. These will generally have automatic suspensive effect. However a derogation with respect to appeals within a border procedure (Article 60(3)) means that suspensive effect must be authorised by a judge, and is therefore not automatic. A 5 day deadline for appeal with no automatic suspensive effect appears to contravene the safeguards set out in Article 46(6) and 46(7) rAPD

Based on an AIDA article dated 4 April 2016, available here.


ECRE: AIDA Comparative Report on Reception 

AIDA has published a comparative report which discusses Europe’s ongoing failure to find humane responses to the plight of refugees, leading to severe difficulties in ensuring reception for those seeking asylum.

The report focuses on 20 countries and demonstrates that the inability of reception systems to adapt to higher numbers of asylum seekers is a structural challenge throughout Europe. A central challenge to the operation of reception systems has been the obligation of states to identify vulnerabilities and provide appropriate reception to persons with special needs. Vulnerable persons such as unaccompanied children have been unduly subjected to detention due to the unavailability of appropriate reception places, not least in countries of first arrival. The implementation of the “hotspot” approach in Italy and Greece has reinforced the risk of detention of asylum seekers and migrants, contrary to states’ obligations.

The report also documents discrimination faced by asylum seekers of certain nationalities in the reception context. As many as eight European countries have resorted to some form of discrimination by privileging some nationalities over others when providing accommodation. In some countries, certain asylum seekers have found themselves arbitrarily detained on the basis of their nationality.

Based on an article originally published on the AIDA website, dated 31 March 2016, available here

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Joint briefing on the European Border and Coast Guard Regulation 

The International Commission of Jurists, ECRE and Amnesty International have published a joint briefing on the proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard.

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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 (

Supported by the Fundamental Rights and Citizenship Funding Programme of the European Union and UNHCR