European Court of Human Rights
Cases communicated against Latvia and Greece
The European Court of Human Rights (ECtHR) has communicated the following two cases:
- M.A. and Others v. Latvia (Application No. 25564/18): The applicants, a couple and their five children, are of Chechen origin. The events leading to their departure to Belarus and their attempts to enter Poland and Lithuania are described in M.A. and Others v. Lithuania, 59793/17, and M.A. and Others v. Poland, 42902/17. On 24 November 2017, the applicants travelled by train to Latvia with a group of 27 asylum seeking individuals. The group was stopped at a border crossing by the Latvian State Border Guard Service. The applicants submit that despite requesting asylum when stopped by border authorities, they were returned to Belarus in violation of their rights under Article 3 of the Convention. The applicants also complain under Article 4 of Protocol No. 4, regarding collective expulsion, and Article 13 in conjunction with Article 3 and Article 4 of Protocol No. 4 regarding access to an effective remedy.
- Ansar v. Greece (Application No. 23413/16): The applicant, a Pakistani national, arrived to the Greek island of Lesbos on 24 February 2016 as an unaccompanied minor (UAM). The applicant submits that the conditions of detention in the area for unaccompanied minors in Moria camp and in Section B of the camp, where he was also beaten by police officers, were a violation of his rights under Article 3. The applicant also complains under Article 5 against unlawfulness of his detention from 21 March 2016 to 4 May 2016. Relying on the right to family life under Article 8, the applicant submits that he was unable to reunite with his uncle in Athens. Lastly, relying on Article 13, the applicant complains of the lack of an effective remedy about his conditions in detention.
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Updated guide on Article 5 on the Right to Liberty and Security
The ECtHR has published an updated guide on Article 5 of the Convention on the right to liberty and security, with extensive lists and explanations of relevant case law.
The guide first details the scope of application of Article 5, including, inter alia, the definition of deprivation of liberty as well as the criteria to be applied. This is followed by an examination of the lawfulness of detention under Article 5 § 1, including sections on, inter alia, compliance with national law, legal certainty, no arbitrariness and acceptable procedural flaws in detention.
The guide then examines detention that is authorised under Article 5 § 1, including for non-compliance with a court order or legal obligation, as well as detention for medical or social reasons, and of minors and third-country nationals. The last section of the guide examines guarantees for individuals deprived of their liberty.
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Council of Europe
GRETA Publishes 2018 Annual Report
The Group of Experts on Action against Trafficking in Human Beings (GRETA) of the Council of Europe has published its Annual Report for 2018.
The report addresses country-specific monitoring activities conducted throughout the year, the urgent procedure evaluation of Hungary and the launch of the third evaluation round of the Anti-Trafficking Convention. The report stresses the importance of the human-rights based approach, with a particular focus on gender and child-protection, that has been followed by the working group in 2018. This approach ensures effective protection of the rights of all survivors to assistance, residence, international protection, compensation and redress.
The report identifies areas for improvement with regard to compliance and implementation of the Convention in Member States. In particular, access to information and legal assistance remains a challenge for many victims, and especially for those who are in an irregular migration situation. The working group remarked on the importance of ensuring that unconditional assistance is provided to them, recognising that fear of punishment and reprisal, as well as the impact of trauma may hamper a victim’s ability to engage with criminal justice proceedings. It also stressed the importance of ensuring that survivors are not criminalised, and that they have access to compensation and effective legal redress.
The provision of specialised assistance to victims of trafficking who may also be seeking asylum or complementary forms of protection is another issue that GRETA identified in many country evaluation reports.
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National Developments
Bulgaria: Iranian asylum applicant appeal granted on grounds of religious persecution
On 21 May 2019, the Administrative Court of Sofia City granted the appeal of an asylum applicant of Iranian origin, who submitted an application on the grounds of religious persecution in Iran for her Christian beliefs.
The application for asylum was initially rejected by the State Agency for Refugees (SAR), which held that the grounds for persecution submitted by the applicant were unfounded. In particular, the authority held that her reasons for leaving Iran were of a personal and social character, stating that her flight was primarily due to a failed marriage, and that she was not persecuted because of her ethnicity or her beliefs, with the latter point underscored by the fact that she left Iran legally. The SAR found that the applicant did not face a risk of indiscriminate violence if she were to be returned to Iran.
In examining the appeal, the Administrative Court of Sofia City diverged from the decision of the SAR and found that the applicant had sufficiently proved that she was persecuted. The Court held that the applicant’s statements were consistent and plausible, and that, since her first submission, she had stated that her primary reason for leaving Iran was persecution for her Christian beliefs. In this assessment, the Court made reference to the CJEU case of Fathi, C-56/17, in which the CJEU established that all elements of an applicant’s claim do not need separate substantiation or documentary evidence if the claim is consistent and plausible (para 82).
The Court also addressed the grounds for refusal presented by the SAR that the applicant left Iran legally and that a significant period of time had lapsed between her being detained and beaten in Iran and her current asylum application. The Court held that these facts were irrelevant and found that Christians in Iran face repression from the government and have to practice in secret.
The Court found that the applicant had sufficiently established her fear of persecution on the grounds of religion, which is a basis for granting refugee status under Article 8, paragraph 1 of the Law on Asylum and Refugees. In that regard, the decision of the SAR was annulled and the case returned to the agency.
The applicant is represented by Valentina Nilsen, a lawyer from the Bulgarian Helsinki Committee, an ELENA Network member organization.
The EWLU would like to thank Iliana Savova of the Bulgarian Helsinki Committee and ELENA Coordinator for Bulgaria for bringing our attention to this case and for her assistance with the summary. Based on an unofficial translation by the EWLU team.
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Netherlands: Secretary of State for Security and Justice calls for re-assessment of return of beneficiary of international protection to Hungary
On 20 May 2019, the Council of State published a decision in an appeal against an ordered transfer of a child to Hungary, where he is a beneficiary of international protection. The Council ruled that the case must be re-assessed in light of the situation for child beneficiaries of international protection in Hungary.
The applicant, a Syrian national, is 16 years old and was granted international protection in Hungary in June 2018. In July 2018, he submitted an application for asylum in the Netherlands and on 24 October 2018, his application was found to be inadmissible by the Secretary of State for Justice and Security ('the Secretary of State').
In the appeal, the applicant submitted that although his return to Hungary was considered by the Secretary of State under Article 3 of the European Convention on Human Rights, it failed to take into account the best interests of the child under Article 24 (2) of the Charter of Fundamental Rights.
In the initial examination of the case on 24 October 2018, the Secretary of State recognised that international protection applicants in Hungary face difficulties in accessing healthcare, housing and education. However, it was held that beneficiaries of international protection are not fully dependent on Hungarian authorities since, in principle, beneficiaries are expected to build independent lives.
In reviewing the appeal, the Council of State found that the examination of the situation in Hungary failed to take into account the particular circumstances of a 16-year-old child. It acknowledged that Hungary stopped support for the integration of beneficiaries on 1 June 2016, and that there are particular obstacles to accessing education, including, inter alia, the end of financial support from the government. While it recognised a letter from the Hungarian authorities stating that the child would be appointed a guardian upon return, it found such assurances insufficient in light of the difficult position of beneficiaries of international protection in the country, in particular for children. The Council of State annulled the decision of 24 October 2018, and ordered a new decision be made by the Secretary of State.
The EWLU would like to thank Germa Lourens for bringing our attention to the case. Based on an unofficial translation.
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UK: Court of Appeal finds age assessment policy of the Home Office unlawful
On 23 May 2019, the Court of Appeal of the Upper Tribunal (Immigration and Asylum Chamber) released a split decision stating that the Home Office policy on age assessments is unlawful in the case of B.F. v. Secretary of State for the Home Department.
The applicant, an Eritrean national, sought asylum in the UK in 2014 stating he was 16 years old. When seen to by immigration officers, they believed that he was substantially over 18 due to his physical appearance. He was then held in detention pending transfer to Italy under the Dublin III Regulation 604/2013. Two formal age assessments found the applicant to be an adult and a third assessment found the applicant to be a minor and the birth date he had submitted was formally accepted.
Lord Justice Underhill, with reference to recent case law, recognised that the detention of a person who was eventually determined by a court to be a child irrespective of whether it was reasonably believed at the time of detention they were an adult is prohibited under paragraph 18B of Schedule 2 to the Immigration Act 1971. Underhill LJ examined the relevant guidance documents issued by the Home Office on age assessments. The first document, the Enforcement Instructions and Guidance ("the EIG"), states in paragraph 55.9.3.1 that the provided age of an asylum applicant should be accepted unless in situations of one of four given criteria. The relevant criterion in the instant case is Criterion C, which states "their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary”. The second guidance document examined was ‘Assessing Age’.
The Lord Justice considered whether the terms of the policy themselves create a risk which could be avoided if they were better formulated. He recognised the recent changes to policy documents but stated that the phrase “significantly over 18” is imprecise and allowed for a wide margin of error. He took note of the statistical evidence presented by the applicant to show the numerous cases where an initial assessment that a young person is an adult was subsequently found to be “wrong”. He held that anyone who claims to be a child must be given the benefit of the doubt.
Underhill LJ further found that the guidance given in criterion C under paragraph 55.9.3.1 of the EIG, both as it appears there and as reproduced in 'Assessing Age', to be unlawful in the current and the previous versions of those documents. He stated that the documents did not recognise how unreliable assessing age on the basis of appearance and demeanour is, and how wide of a margin of error is required.
The dissenting judge, Simon LJ, agreed with Underhill LJ insofar as Criterion C created a risk of more than a minimal number of children being detained. However, he found the recently updated policy provided sufficient guidance on assessing age. The third judge, Baker LJ, agreed with Underhill LJ and held that the current policy could prove an infringement of rights under both ECHR and the EU Charter. He also referenced the CJEU judgment in Al Chodor (C-528/15) on the need for strict safeguards in the detention of applicants.
The Home Office has applied for permission to appeal.
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Germany: Administrative Court of Munich rules against provisional return of a Syrian applicant from Greece under Bilateral Agreement
On 9 May, the Bavarian Administrative Court of Munich ruled against a provisional return of an applicant from Greece to Germany for refusal of entry and repatriation under the Administrative Agreement between Germany and Greece.
The applicant, a Syrian national, was subjected to a border police entry check while traveling by train from Austria to Germany on 2 October 2018. The applicant stated that he had spent two months in Greece and had travelled to Germany to join his sister and request asylum. A EURODAC search revealed that he had applied for asylum in Greece in April 2018. On the same day, the Federal Police sent a notification to Greek authorities, who agreed to the repatriation. The attempt to return the applicant on a flight from Munich to Athens on 2 October 2018 failed and the applicant was detained until 6 October 2018, on which date he was returned.
The applicant submits that when he returned to Greece he was accommodated in a camp, did not receive any state financial support, and had limited access to medical care. The applicant further submits that he has severe mental health issues, as a result of which he was temporarily admitted to a psychiatric institution in Greece. With reference to the recent report by the Committee for the Prevention of Torture and Inhuman or Degrading and Degrading Treatment or Punishment (CPT) on Greece, the applicant submitted that the psychiatric facilities in Greece were inadequate and amounted to inhuman and degrading treatment. The applicant also claimed dependency on his sister in Germany within the meaning of Article 16 of the Dublin III Regulation 604/2013.
In its assessment of the case, the Bavarian Administrative Court of Munich refused to grant interim measures under § 123 (1) of the Administrative Court Rules (VwGO) to transfer the applicant back to Germany from Greece. The Court held that interim measures presuppose both a need to claim provisional legal protection on the grounds of urgency and a claim for an injunction, i.e. the sufficient prospect of success or at least of partial success of the asserted claim in main action proceedings. It found that such an assumption could not be made in the instant case as the main claim is inadmissible, and therefore the Court refused to grant interim measures.
The Court held that, in any case, the applicant’s asylum case would not be heard in Germany, but in Greece as required under the Dublin III Regulation 604/2013. Thus, there were no main action proceedings to be heard in the instant case. It also found that in this situation Article 29 (3) of the Regulation, under which a person erroneously transferred can be brought back, did not apply because the applicant was not transferred in error but to his current place of residence in Greece. It also found that the family reunification component to the applicant’s sister was not permissible as siblings are not included in the definition of Article 2(g) of the Regulation.
With reference to Article 13 (1) of Regulation 604/2013, the Court held that Greece was responsible for the asylum application. The Court recognized that transfers to Greece had been reinitiated since 2016, as recommended by the European Commission Communication of 8 December 2016, and it stated that the prospects for the asylum system in Greece had improved. The Court held that the applicant would not specifically and individually be affected by systemic weaknesses in Greece. It stated that his conditions in Greece did not amount to inhuman or degrading treatment and that he was able to keep in touch with his sister. The Court held that the decision was not unlawful and ruled against the provisional return of the applicant to Germany.
Based on an unofficial translation by the EWLU.
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