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ELENA Weekly Legal Update (EWLU)

4 October 2024
 

Summary


Council of Europe

Council of Europe


CoE Committee of Ministers: Decisions on the supervision of the execution of the ECtHR judgments in Camara v. Belgium, and Ilias and Ahmed and Shahzad groups v. Hungary

On the 19th September 2024, the Council of Europe’s Committee of Ministers (CM) adopted its decisions relating to the supervision of the execution of the ECtHR judgments in the cases of Camara v. Belgium (Application No. 49255/22) and of Ilias and Ahmed and Shahzad groups v. Hungary (Applications Nos. 47287/15 and 12625/17).
 
In its decision regarding the case of Camara v. Belgium, the CM recalled that the case involved the Belgian authorities' refusal to comply with a 2022 Labour Tribunal order to provide accommodation to an asylum applicant, highlighting a systemic issue of non-compliance with judicial decisions, which the ECtHR found incompatible with the rule of law. Regarding individual measures, no further action was deemed necessary as the applicant was granted accommodation on 2 November 2022. On general measures, the authorities’ commitment to addressing the systemic problem was noted, including their efforts to increase reception capacity and create 3,500 new temporary places. However, the measures were considered insufficient given the ongoing crisis, prompting the CM to urge the authorities to act swiftly, increase collaboration, adopt a sufficient budget, and enhance the reception network. They encouraged further cooperation with the European Union Agency for Asylum, the use of emergency alternatives, and close monitoring of judicial decision enforcement. The CM plans to review the country’s progress in September 2025.
 
In its decision regarding the case of Ilias and Ahmed and Shahzad groups v. Hungary, the CM reviewed the Ilias and Ahmed group of cases, which involves Hungary’s failure to assess the risk of inhumane treatment or ensure access to an adequate asylum procedure before removing applicants to Serbia. It also addressed the Shahzad group of cases, concerning the collective expulsion of asylum applicants without due process, violating Article 4 of Protocol No. 4 and Article 13 ECHR. The CM called on Hungary to ensure proper assessments before removing asylum applicants, reform its asylum system to provide effective legal entry, and stop collective expulsions to Serbia without individual assessment. It urged Hungary to accelerate legislative reforms, provide information on judicial reviews, and submit action plans by June 2025, with the next review being scheduled for September 2025.

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ECtHR Communicated case:  Conformity with the ECHR of the care given to unaccompanied minors by the French national authorities during the period of contestation of their minority status

On the 5th September 2024, the European Court of Human Rights (ECtHR) communicated the case of S.C. v. France (Application no. 4067/22) and 3 other applications. The case concerns the failure of French authorities to care for foreign nationals identified as unaccompanied minors during the period when their minority status was contested. Relying on Article 3 of the European Convention on Human Rights (ECHR), A.D.S. (Application no. 10844/23), K.N. (Application no. 19697/23), and J.A. (Application no. 42429/23) claim inhuman and degrading treatment due to inadequate care for their age. Under Article 8 ECHR, S.C. (Application no. 44067/22), A.D.S., and K.N. argue they were denied the presumption of minority and were prevented from accessing child welfare services. J.A. further alleges a breach of his right to private and family life. All applicants, invoking Article 13 with Articles 3 and/or 8 ECHR, claim they lacked effective remedies during the wait for the judge’s ruling on their minority status.
 
The ECtHR asked the parties several questions, including whether the treatment violated Article 3 ECHR, whether Articles 3 and 8 were violated due to the lack of child welfare care and whether the age determination process complied with the procedural requirements of Article 8 ECHR.
 
Based on an unofficial translation from within the EWLU team. 

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ECtHR: The forced removal of an Afghan family by Hungary violates Article 4 of Protocol No. 4 of the ECHR

On the 19th September 2024, the ECtHR ruled in the case of M.D. and Others v. Hungary (Application no. 60778/19).
 
The application concerned an Afghan family of six who had fled Iran due to insecure residency and fear of deportation to Afghanistan. After arriving in Hungary in January 2019, they applied for asylum, but their claims were rejected by the Hungarian authorities on the grounds that Serbia was considered a "safe transit country." However, Serbia refused to readmit them, and Hungary subsequently ordered their removal to Afghanistan. The applicants alleged that, on 7 May 2019, they were forcibly returned from the Röszke transit zone to Serbia by the Hungarian authorities. Relying on Article 4 of Protocol No. 4 of the European Convention on Human Rights (ECHR), taken alone and in conjunction with Article 13, they complained that this removal had been carried out in the absence of a valid expulsion decision, without regard for the Serbian authorities’ refusal to readmit them, and without their having had access to an interpreter or a lawyer.
 
The ECtHR first assessed whether the applicants' removal from Hungary constituted "expulsion" under Article 4 of Protocol No. 4, which covers any forcible removal of an alien, regardless of their legal status or voluntary departure claims. Recalling its previous caselaw, the ECtHR found that despite the Hungarian authorities framing the removal as voluntary, the applicants, particularly the minor who signed the statement, were pressured to leave without proper legal safeguards such as access to an interpreter. The ECtHR concluded that the applicants were compelled to leave, making their removal an expulsion under Article 4 of Protocol No. 4, and declared the application admissible. Recalling its previous caselaw on the general principles for assessing the collective nature of expulsion, the Court reiterated that Article 4 of Protocol No. 4 requires the individualised examination of the circumstances of each person concerned by a potential expulsion measure. In the present case, the Court found that Hungary failed to genuinely consider the applicants' personal situations, particularly after Serbia refused their readmission, and did not provide effective opportunities for the applicants to contest their removal. Additionally, the lack of access to an interpreter or lawyer undermined the fairness of the process. Consequently, the ECtHR concluded that the applicants' removal was an expulsion under Article 4 of Protocol No. 4 and deemed it incompatible with the Convention, thereby identifying a violation of that provision. The ECtHR reaffirmed that, as established in its caselaw, while States may enforce their own immigration policies, challenges in managing migration cannot justify practices that violate their obligations under the ECHR.

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ECtHR: Greece's failure to provide adequate living conditions for asylum applicants and unaccompanied minors violates the ECHR

On the 3rd October 2024, the ECtHR ruled in the cases of M.A. and Others v. Greece (Applications nos. 59841/19 and 2 others), T.A. and Others v. Greece ((Applications nos. 15293/20 and 3 others), and T.S. and M.S. v. Greece (Application no. 15008/19).
 
M.A. and others and T.A. and others concerned asylum applicants and unaccompanied minors who arrived in Greece in 2019 and were placed in Reception and Identification Centres (RICs) on the islands of Samos and Chios. They complained under Article 3 of the European Convention on Human Rights (ECHR) of severe overcrowding, inadequate access to medical care, poor sanitation, lack of security, and basic services, with some forced to live in makeshift shelters for prolonged periods. In the case of T.S. and M.S., the applicants, two sisters who were unaccompanied minors, argued a violation of Article 5 and 3 ECHR as they were not provided with shelter or other protection measures and were placed in protective custody at the Tavros Pre-Removal Detention Centre with adults.
 
The ECtHR concluded that the living conditions in the RICs violated Article 3 of the Convention, which prohibits inhuman or degrading treatment. Citing M.S.S. v. Belgium and Greece and Tarakhel v. Switzerland, the ECtHR reaffirmed that States have a positive obligation to ensure adequate living conditions for asylum seekers and unaccompanied minors. It found that the overcrowding, lack of access to sanitary facilities, and inadequate medical care, especially for vulnerable individuals such as minors and the elderly, exceeded the threshold of severity required by Article 3. The ECtHR noted that the Greek authorities, despite being fully aware of the applicants' precarious circumstances, failed to take timely action to improve their conditions.
 
In the case of T.S. and M.S., the Court found a violation of Article 3 ECHR on account of the failure of the authorities to provide shelter to the two minors and noted that the high of accommodation requests at the time did not absolve the government of its obligation to provide accommodation to the applicants. Regarding their eventual placement in protective custody, the Court found a violation of Article 3, due to the detention conditions, and Article 5 (1) and (4) due to the unlawful nature of the measure and the lack of a possibility to challenge the detention, in line with its case law in H.A. and others v. Greece.
 
In all three cases, the Court held that Greece had breached its obligations under the ECHR and awarded the applicants non-pecuniary damages, ranging from €2,500 to €7,400, for the suffering caused by the prolonged exposure to inhumane conditions.

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European Union


EUAA: Publication of the Latest Asylum Trends for the first half of 2024

On the 16th September 2024, the European Union Agency for Asylum published its Analysis of the Latest Asylum Trends for the first half of 2024.
 
This analysis presents data on asylum applications lodged in the EU+ countries, including the applicants' main nationalities, the trends, applications per receiving country, applications per capita and temporary protection. This analysis also provides information on recognition rates according to the nationalities of applicants and across EU+ countries. Additionally, it presents data on pending cases and the situation in asylum and reception systems.
 
According to the EUAA’s analysis, in the first half of 2024, the EU+ received 513,000 asylum applications, a stable figure compared to the previous year’s peak since the 2015–2016 refugee crisis. Syrians accounted for 14% of the total, increasing by 7% from 2023. Despite a 20% decline in applications, Germany remained the top destination, receiving a quarter of all submissions. By June 2024, 925,000 cases were awaiting a first-instance decision, slightly lower than the previous month’s record. Meanwhile, 4.5 million individuals fleeing Ukraine held temporary protection, with Czechia, Lithuania, and Poland hosting the most beneficiaries per capita.

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FRA: Guidance on the implementation of National monitoring mechanisms under the EU Pact on Migration and Asylum

On the 19th September 2024, the European Union (EU) Agency for Fundamental Rights (FRA) published their guidance on how the EU countries should set up national independent mechanisms to monitor fundamental rights compliance during screening and asylum border procedures.
 
The new EU Pact on Migration and Asylum, particularly Article 10 of the Screening Regulation (Regulation (EU) 2024/1356) and Article 43(4) of the Asylum Procedure Regulation (Regulation (EU) 2024/1348), requires member states to create mechanisms for monitoring compliance with fundamental rights during the screening of new arrivals and the processing of asylum claims at the EU's external borders. FRA’s guidance on how to implement these mechanisms, focuses on nine key considerations. These include ensuring that monitoring bodies remain independent and separate from the authorities overseeing asylum and migration. They should have a wide-ranging mandate to monitor all activities related to the treatment of non-EU nationals during border screenings and asylum assessments. Additionally, these bodies must be empowered to conduct inspections freely, without restrictions on time or location. The mechanisms must be equipped to investigate rights violations, document complaints, and handle allegations appropriately. Adequate staffing and financial resources are essential to their effectiveness. Furthermore, they should ensure accountability by making their work, findings, and recommendations publicly available. Collaboration with existing rights monitoring bodies and cooperation with migration and data protection agencies is also important. The guidance emphasises the role of human rights frameworks in border procedures. Ultimately, these mechanisms aim to prevent fundamental rights violations, safeguard victims, increase transparency and accountability, and foster greater public trust in authorities.

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National Developments


Spain: The Administrative Contentious Court of Ceuta declared the return of an individual intercepted at sea in November 2023 to Morocco unlawful

On the 4th September 2024, the Administrative Contentious Court No. 2 of Ceuta, Spain, ruled in appeal in a case against the Government Delegation of Ceuta. The claimant challenged his return to Morocco, arguing it was a de facto action lacking legal procedure.
 
The case arose from an incident on 14 November 2023, when the applicant, along with two others, were intercepted by the Guardia Civil while swimming to Ceuta. After being detained, they were returned to Morocco without undergoing any formal legal process, such as access to legal representation, interpretation, or a formal expulsion order. The claimant argued that this omission constituted a violation of his rights and sought redress in the form of compensation and return to Spain.
 
The Court determined that the expulsion of the claimant to Morocco was unlawful, as it was executed without adhering to the requisite legal procedures. It underscored that no formal administrative process was followed, depriving the claimant of essential protections, including legal counsel, interpreter services, and a formal decision authorising his return. The Court rejected the government’s argument that the expulsion was justified under "border rejection" provisions, stating that such provisions apply solely to attempts to breach physical barriers at the border, which was not the case here, as the claimant had been intercepted at sea. The absence of these procedural safeguards rendered the expulsion an unauthorised de facto action, exceeding the lawful scope of administrative authority. In its ruling, the Court annulled the expulsion, declaring it void and without legal effect. It further clarified that the annulment requires the claimant’s immediate readmission to Spain at the government's expense, ensuring that the appropriate administrative procedures could be duly carried out. The Court denied the claim for non-material damages, citing insufficient evidence of psychological or emotional harm. Nonetheless, it upheld the claimant's right to proper legal process upon his return, including the opportunity to seek international protection, thus reaffirming the fundamental requirement that any expulsion must be lawfully conducted in accordance with established procedural guarantees.
 
Based on an unofficial translation from within the EWLU team. Many thanks to SJM España for bringing this case to our attention.

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France: UNRWA's inability to provide protection or assistance to Palestinians in the Gaza Strip led the CNDA to rule that they qualify for refugee status

On 13th September 2024 the CNDA ruled in the case M. et Mme S. n°23042517 and 23042541 C+. The case concerned two Palestinian nationals, M. S. and Mme S., who grew up in the United Arab Emirates before relocating to Gaza in 1997 and 2000, respectively. Following a series of violent events, including the kidnapping of M.S. following his refusal to provide donations to Hamas and continuous threats after his release, the couple fled Gaza in March 2023 and arrived in French Guiana. M. S. and Mme S. asserted that they qualify for refugee status under Article 1(D)of the 1951 Geneva Convention due to a well-founded fear of persecution from Hamas for M. S.'s refusal to collaborate with the group. As a subsidiary argument, they claimed entitlement to subsidiary protection due to their vulnerability and the deteriorating security situation in Gaza, where they would be expected to return.

The CNDA first recalled that, in accordance with Article 1(D) of the 1951 Geneva Convention, Article L.511-6 of the French Code governing the entry and residence of foreign nationals and the right of asylum and Article 12 of the recast Qualification Directive (Directive 2011/85/EU), individuals already benefiting from the protection or the assistance of an organ or institution of the United Nations, such as UNRWA, cannot be recognised as a refugee unless this protection or assistance has ceased.  Following the judgment delivered by the Court of Justice of the European Union on 13th June 2024 (LN v. Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite, C-563/22), the CNDA examined UNRWA's ability to fulfil its mission in light of the deterioration in the security and humanitarian situation in the Gaza Strip since 7 October 2023. The Court found that the Gaza Strip was in the grip of an armed conflict between Hamas forces and the Israeli armed forces, and that the territory was facing a major humanitarian crisis. The CNDA, relying on various documentary sources, found that UNRWA is no longer able to provide effective assistance and protection to any Palestinians residing in the Gaza Strip and therefore granted refugee status to M. S. and Mme. S., who did not fall under any of the exclusion clauses referred to in Article 1(D) of the 1951 Geneva Convention.

Based on an unofficial translation from within the EWLU team. 

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ECRE


AIDA: Malta 2023 Country Report

This week, AIDA published its 2023 Country Report on Malta. The report updates the previous report and provides a detailed overview on legislative and practice-related developments in asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2023. The report is accompanied by an annex detailing the procedure and content of temporary protection in Malta in 2023.

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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 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 Julia Zelvenska (jzelvenska@ecre.org).






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