Council of Europe
European Committee on Social Rights: Decision on “immediate measures” for migrant children in Greece and admissibility of ECRE and ICJ collective complaint
On 23 May 2019, the European Committee on Social Rights requested Greece to adopt “immediate measures” to protect the rights of migrant children as required under the European Social Charter and prevent serious and irreparable injury or harm to the children concerned, including damage to their physical and mental health, and to their safety.
The Committee’s decision requires the government to immediately provide migrant children with appropriate shelter, food, water, education and medical care; to remove unaccompanied migrant children from detention and from Reception and Identification Centers (RICs) at the borders, place them in suitable accommodation for their age and appoint effective guardians. The Committee noted that “immediate measures” were exceptional, but found that they were necessary in this case given the government’s failure to dispel serious concerns about the gravity and urgency of the situation of migrant children in Greece.
This decision is in response to a collective complaint brought before the Committee by European Council on Refugees (ECRE), International Commission of Jurists (the ICJ) and the Greek Refugee Council (GCR), alleging systemic violations of migrant children’s rights on mainland Greece and the North Eastern Aegean islands. The complaint catalogues the numerous ways in which Greece has failed to fulfil its obligations under the European Social Charter to protect the rights of migrant children, leaving them in conditions of squalor, insecurity and violence. The complaint also notes that severe deficiencies in basic care facilities have serious knock-on effect on hygiene, sanitation and substantive physical and mental health care and treatment for children. In addition, mixed living arrangements, limited, if not non-existent security patrols, and deficient guardianship systems have led to numerous reports of sexual abuse, violent assaults, harassment and humiliation of migrant children in camps on the Greek islands.
In addition to indicating immediate measures, the Committee found the complaint itself admissible. The complaint now awaits examination and determination on the merits by the European Committee on Social Rights.
Read the statement on decision here and full complaint here.
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European Union
CJEU: AG Campos Sánchez-Bordona Opinion in Haqbin (C-233/18) on the withdrawal of reception conditions
On 6 June, Advocate General Campos Sánchez-Bordona’s delivered his opinion in the case of Haqbin (C-233/18). The case concerns the withdrawal of material reception conditions, under Article 20 (4) of the Reception Conditions Directive 2013/33/EC (rRCD), of an unaccompanied child for having breached the rules of a reception centre.
The unaccompanied child was involved in an altercation in a Belgian reception centre and it was deemed that he put the lives of residents and staff at risk. The centre’s director ordered the temporary exclusion of the child from reception conditions, including access to food, clothes, activities, and medical, psychological and social support, with the exception of emergency medical attention. The child subsequently slept in a park in Brussels. He was re-admitted to a reception centre over two weeks later.
In examining the case, AG Campos Sánchez-Bordona first clarified that the Opinion concerned the scope and provisions of Article 20 of Directive 2013/33/EC with regard to the particular situation of an unaccompanied minor. He recognized that while Article 20 (4) gives national authorities a margin of appreciation in its application, he held that this margin has limits and Article 20 must be read and interpreted with due regard for human dignity and the rights of the child, enshrined respectively in Articles 1 and 24 of the Charter of Fundamental Rights.
Under Article 20 (5) and (6) of Directive 2013/33/EC, sanctions must be adopted objectively and impartially, be proportionate, and be imposed at the end of an individualized examination, in which the particular situation and the specific needs of vulnerable people are assessed. To this end, AG Campos Sánchez-Bordona stressed that Member States must prioritize the best interests of the child. In situations in which an applicant lacks a source of income, the Member State must provide access to the most basic rights: accommodation, food, and clothes. He stated that Article 20 (4), along with Article 20 (1) and (3), must be interpreted narrowly as the applicant remains a priori a beneficiary of the right to reception and does not have the means to cover his basic needs.
The Advocate General recognized the particular vulnerability of unaccompanied minors and held that any consequences for a child’s behaviour should be taken following national procedures for the protection of children. The withdrawal of material conditions must be accompanied by the intervention of the assistance services or of the judicial authorities for the protection of minors who are best placed to assess the specific needs of the minor and to order, in particular, the assistance measures to be applied by qualified personnel, in an adapted accommodation.
With reference to the Court’s own case law as well as that of the ECtHR, the Advocate General stated that there was a need to respect human dignity at all stages of the procedure. Additionally, he reiterated the principle of continuity of assistance, provided for in Recital 8 of the rRCD, which requires that an individual not be deprived of assistance, even for a very short period of time.
AG Sánchez-Bordona stated that it is not sufficient to attach to the decision of expulsion from the reception centre a list of shelters for homeless persons in which the unaccompanied minor can request assistance. This procedure does not adequately respect the best interests of the child and generates a risk of rupture in the continuity of assistance.
He concluded that in circumstances such as in the present case, Article 20 (4) of Directive 2013/33 must be interpreted as not precluding national legislation permitting a withdrawal of material reception conditions, provided that before withdrawing conditions, the assistance services or the judicial authorities for the protection of minors are notified, in order to guarantee that the minor will enjoy continuous assistance adapted to the specific needs of his age, status and situation.
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European Commission: Annual Report on Migration and Asylum 2018
The European Commission has published the 2018 annual report of the European Migration Network (EMN) on migration and asylum and the accompanying National Reports for all participating Member States and Norway.
The reports key findings include, inter alia, that the majority of Member States and Norway introduced changes to the rights and obligations of persons seeking international protection in 2018, including with regard to the use of personal data, the resumption of transfers to Greece, and changes to asylum legislation. The report notes of improvements made in the protection of unaccompanied minors, with particular regard to the training of staff and changes in age assessment policies to address inconsistencies.
The report also details how several Member States have altered citizenship rules, particularly with regard to revocation, in light of national security concerns. Finally, border control measures continue to be of concern to a number of states, and many are also working towards making returns of third-country nationals more effective.
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European Court of Human Rights
Case communicated against the Netherlands
The European Court of Human Rights (ECtHR) has communicated a new case against the Netherlands.
- Muse Shire and others v. the Netherlands (application no. 9933/18): The applicants, a married couple and their second child, are Somali nationals. The husband was granted subsidiary protection in the Netherlands in 2010. He applied for refugee-family reunion, which was granted for his wife and first child in October 2013. However, the second child, who was not born at the time the application was submitted but in May 2013, before the reunification was granted, was not included and stayed behind. A second request for family reunion in October 2015 was refused on the grounds that the parents did not meet the minimum income requirement from which they were no longer exempt. The applicants complain under Article 8 of the Convention that the denial of family reunion violates their right to respect for family life.
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National Developments
Ireland: Supreme Court overturns refusal to grant citizenship on national security grounds
On 31 May 2019, the Supreme Court of Ireland ruled in the case of A.P. v. The Minister for Justice and Equality ([2019] IESC 47) regarding the refusal to grant naturalization to a recognized refugee on “national security” grounds.
The applicant, Mr. P, is an Iranian national and was granted refugee status in Ireland in December 1991. He submitted applications for naturalisation on a number of occasions, all of which were refused, most recently in 2013. The Minister provided no reason for the refusal, relying on certain provisions of the Freedom of Information Act 1997, as amended.
Despite a High Court ruling quashing this refusal, the subsequent application was again refused for not meeting the “good character” requirement of s. 15(1)(b) of the Irish Nationality and Citizenship Act 1956, as amended. The refusal referred to an undisclosed “attached report” which referenced “national security/international relations considerations.” The High Court and Court of Appeal determined that Mr. P was given a sufficient reason for the refusal, that the interests of national security outweighed the interests of Mr. P. to know the content of the materials relied on. In the Court of Appeal, Hogan J. also held that the Charter of Fundamental Rights was not applicable as the granting of citizenship represents an exercise of sovereign power by the State.
In the examining the case, the Supreme Court recognised that the right to reasons is a fundamental part of the right to be heard and applies not only when a decision is made, but also during court proceedings so that an applicant can effectively engage in the decision making process. The Court observed that there is no general procedure in Irish law which would allow a case to be decided on the basis of evidence which all affected parties did not have the opportunity to know, save in several exceptional cases. With reference to case law, the Court held that the ultimate decision on whether state interests outweigh the requirement to provide documents is one which must be made by a court rather than by the State authority.
The Court examined the instant case with a view to the principle of proportionality, and held that a failure to give more detailed reasons can only be regarded as justified if that failure impairs the entitlement to reasons to the minimum extent necessary. It held that the State did not abide to the principle of proportionality in impacting the rights of Mr. P to the minimum extent. The Court recognised that decisions on naturalisation are at the discretion of the Minister and that the Court is only placed to decide on the lawfulness of such decisions. It nonetheless held that an independent assessment could have established whether any version of the information could be provided in a way that would not affect State interests.
The Supreme Court ruled that the process followed by the State failed to impact to the minimum extent necessary the applicant’s right to reasons. It quashed the decision of the Minister and ordered that the matter be remitted following an enhanced process to conform with the principles identified in the judgment.
Before concluding the judgment, the Supreme Court also addressed the applicability of the Charter of Fundamental Rights. With reference to the case of Rottmann (Case C-135/08), on the removal of citizenship of an individual who was already a Union citizen, it held that there is nothing to suggest that Union law has any role in the decision to grant citizenship as opposed to its removal. The Court held that it did not think it necessary to reach any final determination on the boundaries of Union law in this area.
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Spain: Supreme Court upholds judgment on re-examination of applications made under border procedures
On 27 May 2019, the Administrative Chamber of the Spanish Supreme Court ruled in a case concerning the re-examination of an international protection application in border procedures.
The State appealed a judgment from 5 April 2018 from the Administrative Chamber of the National High Court (Appeal 110/2017). This judgment held that due to the fact that the request for the re-examination of the asylum application made by the applicant at Barajas Airport, Madrid under the border procedures had not been decided in due time (two days), as foreseen under Article 25.1 of the Asylum Law, the asylum application should thus follow the ordinary procedure. It ruled that the applicant should be authorized to enter and remain provisionally in the territory, irrespective of what may be found in the final decision on the application.
In the instant proceedings, the Supreme Court upheld the ruling of the High Court, stating that the Asylum Law does not refer to the place where the re-examination request shall be made and it does not explicitly deny that this step follows the procedure provided for under the general Spanish Administrative Procedures law. As a result, the Court held that the application for re-examination can be made in any Ministry of Interior's Registry or Public Office as foreseen under the former law and not necessarily in the place where the applicant lodged the application for international protection. It found that this is in line with the guarantees provided for the applicant under the Asylum Law and noted that lawyers, which are mandatory in these cases, shall be free to request a re-examination in any of the abovementioned offices.
The Court found that the calculation of the two days foreseen for re-examination requests under the border procedures, and as referred to under Article 21.5, must begin from the moment of receipt of the request for re-examination by the competent body. In cases where the re-examination request is submitted to an authority that is not in a position to assess the application, in accordance with Article 6(1) of Directive 2013/32/EU, the law stipulates that the time limit is six days. It held that the inactivity of the Administration cannot harm the applicant’s fundamental rights.
The Supreme Court ruled that the appeal should be dismissed and that the judgment under appeal should be upheld.
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