European Court of Human Rights
Judgment in O.O. v. Russia: Court finds violation of Article 3 in return to Uzbekistan
The European Court of Human Rights (ECtHR) has released its judgment in the case of O.O. v. Russia (App. No. 36321/16) concerning the extradition of an Uzbek national.
The applicant arrived in Russia in June 2012. The following year, in June 2013, he was indicted for religious and politically motivated crimes in Uzbekistan for participation in the Islamic Movement of Turkistan. In November 2014, the Moscow Regional Court convicted the applicant of participating in an extremist organization, forging official documents, and attempting an illegal crossing of the border. The applicant submitted an application for asylum on 13 May 2016, which was dismissed due to his criminal record. While awaiting a decision on his asylum application, the applicant received a removal order. Despite interim measures issued by the ECtHR under Rule 39 to stay the order for removal, he was returned to Uzbekistan on 1 July 2016. Upon arrival to Uzbekistan he was arrested and sentenced to 7 years imprisonment. He is currently serving his sentence in a penal colony.
The applicant complained under Article 3 that Russian authorities had failed to consider his claims that he would face a real risk of being subjected to ill-treatment in the event of his deportation to Uzbekistan.
The Court referred to its own case law establishing that individuals prosecuted by the Uzbek authorities on charges of religiously or politically motivated crimes constitute a vulnerable group and noted that Russian authorities had at their disposal a sufficiently substantiated complaint pointing to a real risk of ill-treatment in Uzbekistan. Having considered the national authorities’ cursory rejections of the applicant’s claim, the Court found that they had failed to assess the real risk of ill-treatment if the applicant were returned to Uzbekistan. By enforcing the deportation order, it held that the Russian authorities exposed the applicant to a real risk of being subjected to treatment contrary to Article 3 of the Convention.
The Court further found a violation of Article 34 of the Convention for failing to follow the interim measures under Rule 39 issued by the ECtHR. The applicant was awarded damages.
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Recently communicated cases against Russia and Switzerland
The ECtHR has recently communicated two cases regarding returns from Russia and one case against Switzerland on family reunification:
M.D. and Others v. Russia (App. no. 71321/17): The applicants, six Syrian nationals, arrived in Russia between 2011 and 2016 on various visas and did not leave the country upon expiry of their permissions to stay. They were detained by the immigration authorities and domestic courts ordered their expulsion to Syria. All six applicants complain under Articles 2 and 3 of the Convention that they would face a real risk of being subjected to death and/or ill-treatment in the event of their removal to Syria. Three applicants complain that their detention has been in breach of Article 5 § 1 (f) and that they do not have access to judicial review of their detention, in breach of Article 5 § 4 of the Convention. The other three applicants complain under Article 13 regarding effective domestic remedy for their complaints under Articles 2 and 3.
A.K. and S.P. v. Russia (App. nos. 38042/18 and 44546/18): The applicants are Uzbek nationals in Russia who face criminal charges in Uzbekistan. The pre-trial detention of the applicants was ordered in absentia, and international search warrants were issued by the national authorities of Uzbekistan. The applicants were detained in Russia pending their extradition. The applicants complain that they would face a real risk of being subjected to treatment in breach of Article 3 of the Convention in the event of their removal to Uzbekistan. The applicant A.K. complains that the conditions of detention have been inhuman and degrading, in breach of Article 3. He further complains that he did not have access to an effective domestic remedy, in breach of Article 13. Under Article 5 §§ 1 (f) and 4, A.K. contests the the lack of grounds for his detention and the lack of access to effective remedy in detention.
Zeqiri v. Switzerland (App No. 20596/18): The applicant, a child from Kosovo, resides with her paternal grandparents in Kosovo. The applicant applied for an entry permit and a residence permit for Switzerland for family reunification with her father, step-mother and two stepsisters, all of whom are holders of residence permits. The applicant submits that her grandparents are sick and elderly and no longer able to care for her, and that it is in her best interests to reside with her nuclear family in Switzerland. Under Article 8, the applicant submits that the refusal to grant family reunification amounts to a disproportionate interference with her right to respect for her private and family life.
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European Union
CJEU: Judgment in Bilali C-720/17 on revocation of subsidiary protection status
On 23 May 2019, the Council of Justice for the European Union (CJEU) published its ruling in the case of Bilali (C-720/17). The case, submitted by the Austrian Federal Office for Immigration and Asylum, concerns the interpretation of Article 19 of Directive 2011/95/EU in the revocation of subsidiary protection status.
The applicant requested asylum in Austria in 2009, submitting he was stateless, and was granted subsidiary protection status in 2010 with the assumption that he was probably Algerian. In 2012, the Federal Asylum Office revoked the status on factual grounds that emerged upon further investigation. According to the referring court, there is nothing to indicate that the delay in gathering information was attributable to the applicant. The question submitted by the referring court concerns the interpretation of Article 19(1) of Directive 2011/95 on the possibility of revocation of subsidiary protection status without a change in the relevant factual circumstances, but rather only where the knowledge of the authority has changed and the person concerned cannot be accused of having misled the Member State.
In assessing the case, the CJEU held that it would be contrary to the general scheme and objectives of Directive 2011/95 to grant refugee status and subsidiary protection status to third-country nationals in situations which have no connection with the rationale of international protection. The Court found that the loss of subsidiary protection status in such circumstances is consistent with the purpose and general scheme of Directive 2011/95, and in particular with Article 18 thereof, which provides for subsidiary protection status to be granted only to persons who meet the conditions required to qualify for subsidiary protection. Thus, the Court stated that if the Member State concerned was not entitled to grant that status, it must, a fortiori, be obliged to withdraw it when its mistake is discovered.
Relying on Articles 16 and 19(1) of the Directive 2011/95, the Court found that where the Member State has new information which establishes that, contrary to its initial assessment based on incorrect information, that person never faced a risk of serious harm, within the meaning of Article 15 of that Directive, that Member State must conclude that the circumstances underlying the granting of subsidiary protection status have changed in such a way that retention of that status is no longer justified. That this error was not attributable to the applicant does not alter the fact that the applicant is not eligible for subsidiary protection.
The Court added that this does not imply that the person concerned loses any rights of residence and can be deported to his country of origin, and it does not preclude a person from applying for another kind of protection outside of the scope of Directive 2011/95. The Court emphasized that the Member State is obliged to observe the right to respect for private and family life under Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the ECHR.
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Council of Europe
Commissioner for Human Rights: Report on situation for asylum applicants and refugees in Hungary
The Commissioner for Human Rights of the Council of Europe, Dunja Mijatović, has published a report following her visit to Hungary from 4 to 8 February 2019 where she met with the Hungarian authorities, the judiciary, national human rights structures and civil society.
In the report, the Commissioner criticizes the Hungarian legislative framework for undermining the reception of asylum applicants and the integration of refugees. She calls on the government to end the “crisis situation” they decreed in 2015, stating it was unjustified, and to refrain from using anti-migrant rhetoric.
The Commissioner expressed particular concern with the difficulties in accessing asylum procedures given that applications can only be submitted in two transit zones along the Hungarian-Serbian border. Foreign nationals in an irregular situation, including asylum seekers, apprehended anywhere on Hungarian territory are forcibly removed towards the Serbian border and risk refoulement as they are unable to access asylum procedures or challenge their expulsion. The Commissioner is concerned that the new inadmissibility ground for asylum has resulted in practically systematic rejection of asylum applications and that the applicants cannot access an effective remedy to challenge the decisions. She also called for an end to the systematic detention of asylum applicants. Regarding alleged police violence in pushbacks at the border, she asks authorities to undertake investigations of police conduct.
She further highlighted that the recent legislative measures imposing restrictions on civil society have stigmatised and criminalised NGO activities. She also commented on the situation of the independence of the judiciary and urged the country to ratify the Istanbul Convention on preventing and combating violence against women.
The Hungarian authorities have issued their comments on the above report.
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National Developments
Italy: Humanitarian visa issued for vulnerable unaccompanied child in Libya
On 21 February, the Civil Court of Rome ruled in a case submitted by the mother of a Nigerian unaccompanied child in Libya who applied for a humanitarian visa to join his mother and brother in Italy and receive medical treatment.
The unaccompanied child arrived in Libya in 2016, where he experienced exploitation and detention. The International Organisation for Migration (IOM) assisted the child in contacting his mother in Italy and found accommodation for him. The organisation submitted that the boy had undergone two operations on his leg as a result of an accident and was in urgent need of further surgery. A hospital in Turin provided a detailed treatment plan in respect of the child. However, in their efforts to get the child to Italy for treatment, the IOM were unable to obtain an Italian entry visa or a travel document for the child.
In examining the case, the Civil Court of Rome recognized that the application could be submitted under Article 25 of the Visa Code Regulation 810/09, which allows Member States to to derogate from the principle that the entry conditions laid down in Article 5(1)(a),(c),(d) and (e) of the Schengen Borders Code must be fulfilled.
In reaching this decision, the Court considered the child’s poor health condition, the lack of adequate treatment in Nigeria or Libya, and the need to reunite the family, with a view to the particular vulnerability of the child. The Court considered that the granting of an entry visa for Italy would be in the child’s best interest as he would be reunited with his mother and would receive the treatment he required. In coming to this decision, the Court referred to the Italian constitutional right to family unity and the right to respect for family life under Article 8 of the ECHR, as well as the right to health that is also protected in the Constitution.
The Court also examined the situation in Nigeria, particularly with regard to the lack of adequate medical facilities, as well as the situation in Libya. It recognised the violence faced by migrants in Libya, including at the hands of the Libyan Coastguard, and their lack of access to health care. The Court further recognised that the child was unable to walk, to leave his home in Libya, or to attend school.
In light of the above, the Court ordered the Ministry of Foreign Affairs to issue a humanitarian visa and a travel permit to the child.
Thank you to Maurizio Veglio for bringing our attention to this case.
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Belgium: Council of Alien Law Litigation ruling in case of LGBT aged-out unaccompanied minor from Morocco
On 24 April, the Belgian Council of Alien Law Litigation (CALL) ruled in the asylum case of an aged-out unaccompanied minor from Morocco who claimed persecution due to his sexual orientation.
The Commissioner General for Refugees and Stateless (CGRS) rejected his asylum application as it was not convinced of the credibility of the applicant’s sexual orientation nor the relationships he claimed to have had with men. It further found that this was not a sufficient reason to flee Morocco.
In the refusal, the CGRS noted that the applicant failed to give a spontaneous, detailed and exhaustive explanation of the risks and threats he faced in Morocco. It highlighted his immature personality and the superficial nature of his arguments by holding that he was using social stereotypes, such as that related to the “feminine character of a gay man”. The CGRS also commented on the fact that he had not shown his own personal path in realizing his sexual preferences. It remarked that to be credible, he should have explained the feelings he had when in contact with men.
In reviewing the case, the CALL held that the applicant's young age when the alleged facts took place and when he lodged the asylum application should be considered in the examination of the case. It also observed that the discovery of homosexuality by a teenager is "a complex process difficult to explain" and highlighted that at 18 years old, his sexual identity was still under construction. Furthermore, it found that the CGRS did not fully assess the applicant’s explanations.
The CALL noted that in Morocco, members of the LGBT community face an extremely hostile environment and that the legal framework is repressive. It stated that there was a need to be prudent when analysing asylum applications from Moroccan nationals in such situations and held that such applicants must be given the benefit of the doubt. It added that particular attention should be paid to the potential risks the applicant would face if returned. In the instant case, it found that the applicant faced threats from his family due to his sexual orientation and that there was no protection available from Moroccan authorities.
The Council ruled that the applicant´s allegations were consistent and the threats he faced were well founded. Considering the mistreatment he suffered there, it concluded that he belonged to the particular social group of LGBT persons in Morocco. In recognizing the inadequate protection that the applicant would get from the Moroccan authorities, it granted him refugee status.
Thank you to Cécile Ghymers, member of the ELENA Network Belgium for bringing our attention to this case. Based on an unofficial translation by the EWLU.
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