ELENA Weekly Legal Update - 7 March 2014
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7 March 2014



Council of Europe

Parliamentary Assembly: Resolution published on use of integration tests

The Parliamentary Assembly of the Council of Europe, in a Resolution entitled ‘Integration tests: helping or hindering integration?’, has recommended Member States to reappraise their approach to integration tests in citizenship, residence and family reunification applications. The Assembly notes that integration tests have seen an increase in use, a rise in the standards required, and an expansion beyond language assessment to include ‘citizenship’ questions about the state’s social and political affairs.

According to the Resolution, expected standards exceed what is reasonably attainable, illiterate or poorly educated family members are barred from reunification with recognised refugees, adequate financial support is unavailable for preparatory courses, and failure leads to the denial of citizenship, residence or reunification.

To remedy the impact of integration tests, the Assembly recommends that required language proficiency levels be attainable. Assessment should recognise effort as well as achievement by taking into account literacy and education levels and any characteristics of vulnerability. Testing should not be the only method of assessing commitment to integration, adequate support must be provided in the form of preparation for testing, and failure should lead to requiring further efforts, rather than unconditional refusal.

Read the Resolution of the Parliamentary Assembly.

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Commissioner for Human Rights: Lecture entitled ‘Refugee Protection, Migration and Human Rights in Europe’ 

During a speech this week, Nils Muižnieks, Council of Europe Commissioner for Human Rights, urged EU Member States to do more for refugees, especially those fleeing Syria, and live up to their obligations under international law.

The Commissioner stated that a big challenge faced by those who reach Europe is prospect of a Dublin transfer to Member States whose asylum system is dysfunctional. Muižnieks urged Member States to refrain from using the Dublin regulation to return Syrian refugees to countries such as Bulgaria, Greece, Italy and Malta, where the asylum systems are overstretched or highly dysfunctional.

The Commissioner also stressed that there have been credible reports that border guards and other law enforcement officers in some countries have been mistreating Syrian refugees, robbing them, and pushing them back to countries with high numbers of refugees from Syria.

Read the Commissioner’s lecture.

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United Nations

UNHCR: International Protection Considerations related to developments in Ukraine

In light of recent unrest and violence in Ukraine in late 2013 and early 2014, UNHCR has published a Note calling on States to remove Ukraine from their ‘safe country of origin’ lists. Applicants for international protection from a designated ‘safe country of origin’ may be dealt with in an accelerated procedure with reduced safeguards. For example, such applicants may not be permitted to remain in the country in which they seek protection while their appeal against an initial refusal is determined. UNHCR considers that the accelerated procedure would not currently be appropriate for Ukrainian nationals.

In addition, UNHCR states that some people fleeing Ukraine may qualify for recognition under the Refugee Convention or subsidiary protection under the EU Qualification Directive, in particular those who have been ‘directly or indirectly involved in or affected by the recent unrest and the current situation’. UNHCR notes that some individuals may be excluded on account of having committed acts so grave as to render them undeserving of international protection. 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’.

Recognised refugees, registered asylum seekers, stateless persons and third-country nationals in the Ukraine may be compelled to or choose to leave the country. UNHCR asks receiving countries to refer these persons to their national asylum procedure. UNHCR also advises ‘caution as regards the return of third country nationals to Ukraine in accordance with the terms of bilateral or regional readmission agreements.

UNHCR identified shortcomings in Ukraine’s asylum system back in July 2013, which led it to recommend that Ukraine be removed from ‘safe third country’ lists. Applicants who previously transited via or resided in a ‘safe third country’ are liable to have their claims declared inadmissible or processed under the accelerated procedure. In light of recent developments, UNHCR reiterates the call for Ukraine to be removed from this list.

Read UNHCR’s update on Ukraine.

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UNHCR: Guidance Note on safeguards against irregular removal of refugees and asylum-seekers

The Note concerns the unlawful or irregular removal of refugees or asylum seekers from their host States, particularly in the context of mutual assistance in criminal matters or cooperation on security issues. UNHCR first explains the principle of non-refoulement in pending expulsion and extradition cases and then sets out eight measures that States have adopted to prevent the irregular removal of refugees and asylum seekers. These measures include ensuring access to UNHCR, NGOs and legal assistance for those detained pending possible removal, referral of those released from detention to those responsible for their protection, and provision of secure accommodation options. In addition, UNHCR recommends the establishment of a monitoring and reporting mechanism to ensure the safety of the individuals concerned, and non-disclosure of personal data to the authorities of the country of origin.

Also covered are the obligations and possible responses of a host State once an irregular removal has or may have occurred. According to UNHCR, all relevant agencies of the host State should be informed and furnished with the necessary identifying information, in particular the border agency. An investigation should be initiated, the individual’s representative (if any) should be informed, and the authorities of possible transit countries should be alerted. Accountability for violations of the principle of non-refoulement is crucial. Information and assurances should be sought from the destination country, reparation should be made to the victim(s), those responsible should be punished and the findings of any investigation should be used to prevent future violations.

The Note concludes with a summary of UNHCR’s responsibilities to support efforts to prevent irregular removals and seek resettlement where possible for those who cannot be protected.

Read UNHCR’s Guidance Note.

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National Developments

Ireland: High Court clarifies approach to family reunification regarding dependant family members likely to rely on social welfare

A.M.S. v. Minister for Justice and Equality [2014] IEHC 57 (13 February 2014) concerns a Somali refugee in Ireland, who applied for family reunification with his mother, wife, daughter, two sisters and two brothers pursuant to section 18 of the Refugee Act 1996. His wife and daughter were granted reunification, but the Minister for Justice and Equality refused the application for the other relatives because of the likelihood that they would rely on social welfare.

The High Court ruled that the Minister was not entitled to refuse reunification on this basis. The judge decided that parliament could not have intended ‘to give the Minister the power to refuse entry for the child because the refugee lives on social welfare and because the child will need free education, health care and social welfare support’ [38]. At [42], the judge concluded: ‘In my view the use of the discretionary power to exclude only those dependents who will need state assistance is an arbitrary use of power. Such a result does not accord with the principles of constitutional justice because it is manifestly unfair to accommodate those who need to be with their refugee relative in Ireland but to shut the door on those who equally need to be with their refugee relative just because they are poor and the refugee is on welfare support’.

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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United Kingdom: Home Office Operational Guidance Note on Eritrea

The Note provides guidance to asylum decision-makers of the UK Home Office regarding applicants for protection from Eritrea.

Since ‘there is no effective rule of law within Eritrea’, ‘impunity for serious rights abuse’ and ‘police and judicial corruption’, effective protection from the Eritrean authorities is unlikely for those who fear persecution from a non-state actor. Regarding safe relocation alternatives, the Note is clear: ‘The regime has a tight control of the state and internal relocation is not a feasible option where the fear of persecution stems from the Eritrean authorities or its agents’. Non-state actor persecution requires a case by case analysis in accordance with the principles and jurisprudence on internal relocation.  Reference is made to a number of country guidance judgments of the Upper Tribunal, including ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252 (IAC) (01 July 2011) and MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 190 (IAC) (27 May 2011).

The Note gives guidance on the main categories of claim. Because ‘state persecution of non-sanctioned religions is systematic and widespread throughout Eritrea … a grant of asylum on religious grounds will usually be appropriate’ for members of unregistered religious groups.  ‘Members of recognised/sanctioned religious groups may also face persecution … given the tight control exercised by the Government of all faiths’, but membership is not of itself sufficient to prove risk. The other main categories for which guidance is given are (1) evaders/deserters of military service and their families, (2) members of opposition groups, (3) journalists and human rights activists, (4) persons of mixed Ethiopian/Eritrean origin, (5) those who left Eritrea illegally, (6) women, with a focus on violence against women, military service, trafficking, and female genital mutilation, and (7) those at risk of imprisonment. Specific guidance is also given on cases concerning the unavailability of medical treatment in Eritrea and the return of refused asylum seekers.

Read the Eritrea Guidance Note of the UK Home Office.

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United Kingdom: Court of Appeal refuses appeal of UNHCR-recognised refugees whose resettlement to UK based on close family ties was rejected

In ST & Anor v Secretary of State for the Home Department [2014] EWCA 188, the Court of Appeal rejected the appeals of four female ‘mandate refugees’ who unsuccessfully applied via UNHCR for resettlement in the UK. Mandate refugees are persons resident outside the desired country who have been recognised as refugees by UNHCR after examination of their personal circumstances. Two of the applicants were Iraqi women living in Syria who had a mother and sister living in the UK. They fled Iraq in 2006-7 due to persecution as Sunni Muslims, and their situation in Syria has been precarious ever since. The other two are Iranian nationals, a mother and daughter, residing in Turkey, who fled Iran on account of being Christians. Prior to fleeing to Turkey, they unsuccessfully sought asylum in the UK and were removed to Iran. They have a number of relatives in the UK.

The Court of Appeal considered in these cases the application of the mandate resettlement policy, which is a scheme permitting individual resettlement applications based on ‘close family ties’ with persons already in the UK. It was common ground that ‘close family ties’ in the policy guidance means either a spouse, a minor child, parents/grandparents over 65, or, in exceptional circumstances, family members over 18. Rejecting the applicants' main submission, the Court ruled that it is the applicant outside the UK who must fit one of these descriptions, not the family member in the UK. The Court accepted the Secretary of State’s position that none of the applicants meet the core criteria and that the Home Office had not acted unlawfully in rejecting the claim of ‘exceptional circumstances’. The judge concluded that ‘the presentation of an application by the UNHCR appears to me to be no more than an invitation to the proposed receiving state to consider whether the particular refugee should be received in accordance with that state’s own refugee programme. It remains, however, for the receiving state to decide whether he should be so received or not’ [44].

The Court also rejected the contention that the applicants’ refused application was unlawful on separate Article 8 (right to family life) ECHR grounds. The judge stated, at [88]: the UK’s resettlement policy ‘afford[s] precisely that respect for family and private life which Article 8 is designed to protect. The policy was made in a context in which the UK was not obliged to put in place any policy at all and was under no obligation to admit any refugees. A significant number of EU states have decided not to afford any resettlement facilities. No doubt they too are parties to the ECHR. It seems odd that it should be argued that the adoption of a voluntary policy should enhance or perhaps even create rights under Article 8 which would not otherwise exist’.

Read the judgment of the Court of Appeal.

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Hungarian Helsinki Committee: Report published on statelessness at birth in Hungary

The report, entitled ‘Nationality Unknown? An Overview of the Safeguards and Gaps related to the Prevention of Statelessness at Birth in Hungary’, explores ‘important shortcomings both in the legislative framework and the practice of authorities’ towards statelessness at birth. Three particular groups are identified in the report as being of concern: (1) children born in Hungary to stateless persons with no domicile (Hungarian legal concept meaning more than mere lawful residence); (2) children born to parents who, for whatever reason, are unable to pass on their nationality to their children; (3) children born to beneficiaries of international protection (refugees, beneficiaries of subsidiary protection and tolerated status).

Recommendations are made to ensure that Hungarian practice is brought in line with all statelessness-related international conventions and the UN Convention on the Rights of the Child.

Read the report of the Hungarian Helsinki Committee.

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ECRE: Launch of the ‘Europe Act Now – Help Syria’s Refugees’ campaign

On 6 March 2014, ECRE, together with over 100 partners in 34 countries, launched ‘Europe Act Now’ (www.helpsyriasrefugees.eu), calling on European leaders to protect refugees fleeing the Syrian war.

To date, just 81,000 Syrians have sought protection in the EU, Norway and Switzerland; representing only 3% of the total number of people who have fled. With a death toll of 130,000 and refugee numbers expected to escalate to 4 million by the end of 2014, this war marks one of the greatest humanitarian crises of our time.

At www.helpsyriasrefugees.eu people can ‘give their voice’ to Syria’s refugees and urge Europe’s leaders to take action to: (1) Give refugees a safe way into Europe; (2) Stop pushbacks and protect refugees arriving at Europe’s borders; (3) Reunite families torn apart by the crisis.

The website allows supporters of the campaign to donate their Twitter feed and Facebook account to the refugees of the Syrian crisis. Refugees can share their experiences of fleeing the conflict and attempting to seek protection in Europe with the supporters’ followers and friends. People can also give their voice to protect Syria’s refugees by signing the Europe Act Now petition.

The campaign has already received support from Martin Schulz, President of the European Parliament and Nils Muižnieks, Council of Europe Commissioner for Human Rights. As of lunchtime on Friday 7 March, over 1,500 people and organisations have given their voice to the campaign, 127,000 Twitter followers have been reached, and over 1000 people have signed the petition.

Europe Act Now – Help Syria’s Refugees will run for a period of four months, culminating on World Refugee Day, 20 June 2014.

For more information, visit the campaign website: www.helpsyriasrefugees.eu.

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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