European Court of Human Rights
Communicated cases:
Raoufi and others v. Greece, no 22696/16, communicated 26 May 2016
On 26 May 2016, the Court communicated the case of Raoufi and others v Greece. The case concerns three Afghan applicants and their detention in VIAL hotspot in Chios on 20 March, the day in which the “EU-Turkey deal” entered into force. The applicants claim that the conditions of detention amount to a breach of article 3 of the Convention. Besides this, they also argue that their detention is arbitrary according to the conditions in Saadi v UK and that they were not informed of the reasons for detention, which is contrary to article 5 of the Convention.
KL v. Sweden, no 25141/16, communicated 23 May 2016
In the case of KL v Sweden, communicated on 23 May 2016, the applicant, a national of Lebanon, advances before the Court that article 3 of the Convention would be breached if he were expelled to Lebanon. To substantiate his claim he relies on the risk to his life by Hezbollah upon return.
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R.D. v. France, no 34648/14, 16 June 2016
The European Court of Human Rights delivered a judgment on 16 June 2016 in R.D. v France in relation to the right to an effective remedy and a violation of article 3 of the Convention. The case concerns a Guinean national, R.D., who is married to a Christian and suffered from several violent reprisals on the part of her Muslim brothers and father. Her father, an influential imam, also managed to track her down in Guinea after she fled her home town and had her husband arrested. She left Guinea for France, where she sought help from associations in Reims in an attempt to obtain an address so she could lodge an asylum application. After learning that her father had followed her to France, she decided to leave France with a fake passport but was arrested at the Gare du Nord in Paris. She was served with an order for immediate removal to Guinea and subsequently applied for asylum under the fast track procedure but her application was rejected. The Paris Court decided to stay deportation for the duration of the appeal proceedings.
R.D. claimed that a return to Guinea would expose her to a real risk of treatment contrary to article 3 of the Convention and that due to the fast track procedure, she did not have access to an effective remedy, thereby breaching article 13 of the Convention. The Court decided that even though the procedure was accelerated, R.D. had enough time and knowledge of the procedure to conclude that there was no breach of article 13 read in conjunction with article 3. However, the Court concluded that returning R.D. to Guinea would amount to a breach of article 3 of the Convention for a combination of reasons. Firstly, the Court did not consider Guinea capable of ensuring protection for women in the situation of R.D. In addition to this, the medical certificates documenting earlier violence and a marriage certificate contributed to the credibility of the applicant. And finally the Court did not consider it likely that R.D.’s family would treat her differently after returning to Guinea.
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New ECHR/HELP training videos on asylum cases
The ECHR and the Council of Europe’s European Programme for Human Rights Education for Legal Professionals (HELP) programme have released two new training videos providing an overview of the Court’s case law in relation to asylum and terrorism. These videos are primarily directed at judges, lawyers and other legal professionals, as well as representatives of civil society. The new videos, together with a manuscript listing relevant case-law, are available on the Court’s website and YouTube channel, as well as on the HELP website.
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European Union
CJEU: Case C-199/16 Etat belge v Max-Manuel Nianga
On 8 March 2016 the Belgian Council of State lodged a request for a preliminary ruling to the CJEU, regarding the best interest of a child, family life and the state of health of a third-country national in relation to a return decision or a removal decision. The question referred to the Court is the following:
Is Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and having regard to the right to be heard in any proceedings, which forms an integral part of respect for the rights of the defence, a general principle of EU law, as applied in the context of that directive, to be interpreted as requiring national authorities to take account of the best interests of the child, family life and the state of health of the third-country national concerned when issuing a return decision, referred to in Article 3(4) and Article 6(1) of the directive, or a removal decision, as provided for in Article 3(5) and Article 8 of the directive?
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CJEU: T-192/16 NF v. European Council; T-193/16 NG v. European Council; T-257/16 NM v. European Council
On 22 March and 19 May, three similar applications for annulment against the EU-Turkey Deal were lodged with the General of the EU Court of Justice under Article 263 TFEU. Two cases were brought on behalf of nationals from Pakistan residing in the “No Borders Refugee Camp” in Lesbos, Greece. The third one was launched by an Afghan national who is staying in the “Onofiyta Refugee Camp” in Athens, Greece.
The applicants consider the EU-Turkey Deal an agreement that exposes them to risks of refoulement to Turkey or ‘chain refoulement’ to Pakistan or Afghanistan, thereby obliging them to apply for international protection in Greece, against their will. The applicants have requested that the case will proceed under an expedited procedure.
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National Developments
Belgium: Council for Aliens Law Litigation suspends Dublin transfer to Bulgaria
In an appeal decision taken on 1 June 2016, the Belgian appeal body, the Council for Aliens Law Litigation (CALL), suspended a Dublin transfer of an Afghan national to Bulgaria on grounds that such a transfer would lead to a breach of article 3 of the Convention. The Afghan national applied for asylum in Belgium on 20 August 2015 and received a return decision on 26 April 2016 after the acceptance of a take back request by Bulgaria.
The CALL first established that the reasons for suspension have to be prima facie sufficiently serious. Under this criterion the Council looked at the AIDA report for Bulgaria to establish that the conditions in the reception centres in Bulgaria deteriorated during 2015. Additionally, the ELENA/ECRE research note on the reception conditions in Bulgaria was used to explain several obstacles in all stages of the asylum procedures and the systematic use of detention. Reports from UNHCR and Amnesty International were also cited to conclude that there could be a violation of article 3 of the Convention if the applicant were returned to Bulgaria. In line with the obligation laid down in Auad v Belgium, the Council decided that the Belgian State Secretary for Asylum and Migration also failed to counter the arguments in the reports by not thoroughly informing himself on the foreseeable consequences of a forced return by merely stating that there was no recent UNHCR report advising countries not to return to Bulgaria. The Court finally considered that, in light of Article 13 of the Convention, a suspension is the only way the applicant can be guaranteed an effective legal remedy and thus suspended the transfer decision. This decision was confirmed in another decision taken the same day where again an Afghan national saw his return decision to Bulgaria suspended due to the possibility of a breach of article 3 of the Convention.
The ELENA Weekly Legal Update would like to thank Hilde Van Vreckom for notifying us of this judgment.
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Belgium: Council for Aliens Law Litigation suspends Dublin transfer to Italy
The Council for Aliens Law Litigation decided to suspend the Dublin transfer decision of an Iraqi national to Italy in a judgment rendered on 3 June 2016. The Iraqi national was previously fingerprinted in Brindisi, Italy, and a take-back request on the part of Belgium was sent to the Italian authorities. The Council established that the Belgian State Secretary for Asylum and Migration had not conducted a thorough inquiry of the circumstances in Italy and therefore exposed the applicant to a possible breach of article 3 of the Convention.
The Council recalled case law from the European Court of Human Rights (ECtHR) and reiterated its findings from Auad and Tarakhel, that returning an asylum seeker to a country where he or she faces a real risk of being subjected to treatment in breach of article 3 amounts to a breach of that same article. It also repeated its conclusion from Auad that the authorities are obliged to conduct a thorough research on the foreseeable consequences of a forced return, taking into account the situation in the country and the specific situation of the asylum seeker. The defendant had based its return decision partially on the AIDA report for Italy, where it is mentioned that the conditions in the ‘Dublin returnee reception centres’ are not contrary to international standards. However the Council pointed to the fact that this was only a partial reading of the AIDA report and that the report also mentioned that in June 2015, the ‘Dublin returnee reception centres’ were closed. The Belgian authorities failed to inquire about new initiatives or a possible reopening of the ‘Dublin returnee reception centres’, thereby failing the conditions laid down in Auad and also ignoring the requirement from Tarakhel that up-to-date information has to be the basis of a Dublin transfer. The CALL thus suspended the Dublin transfer to Italy.
The ELENA Weekly Legal Update would like to thank Franz Geleyn for notifying us of this judgment.
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NGOs
EDAL: jurisprudential developments in the UK following the Calais case, ZAT & Others
EDAL: jurisprudential developments in the UK following the Calais case, ZAT & Others EDAL has published a journal article, by Amanda Taylor at ECRE, which analyses jurisprudential developments in the UK following the Calais case, ZAT & Others. It argues that by virtue of recent litigation, the UK Upper Tribunal has clarified the scope of Article 8 and the right to family life under the Convention, crystallised the family unity duties under the Dublin III Regulation and provided substance to the best interest’s assessment of the child.
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