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ELENA Weekly Legal Update (EWLU)

25 October 2024
 

Summary


Council of Europe

Council of Europe


ECtHR Communicated Case: Conformity with Article 3 ECHR of the removal of an applicant to Syria where a risk of being subjected to Inhuman or Degrading Treatment may exist

 
On the 14th October 2024, the European Court of Human Rights (ECtHR) communicated the case of H.M. v. Sweden (Application No. 10859/24). The case involves a Syrian national who applied for asylum in Sweden, citing past imprisonment due to his oppositional activities, ongoing interest in him from the Syrian authorities, and evasion of reserve military service. Swedish authorities denied his asylum request and ordered his deportation. The applicant claims that deportation to Syria would expose him to treatment contrary to Article 3 of the European Convention on Human Rights (ECHR), arguing that he is wanted by the Syrian authorities.

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ECtHR Communicated Case: Deprivation of liberty and restriction of movement of a refugee during COVID-19 in Serbia

 
On the 14th October 2024, the European Court of Human Rights (ECtHR) communicated the case of P.D. v. Serbia (Application No. 42112/21). The case concerns a Burundian national who applied for asylum in Serbia and was accommodated in the Banja Koviljača Asylum Centre. During the COVID-19 pandemic, the Serbian authorities declared a state of emergency and imposed restrictions on the freedom of movement of refugees, asylum applicants, and migrants between March and May 2020, limiting their movement unless authorised under exceptional circumstances. The applicant alleges that these measures amounted to a deprivation of liberty and violated her rights under Articles 5 and 14 of the European Convention on Human Rights (ECHR), and Article 2 of Protocol No. 4.

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ECtHR: Expulsion and detention conditions of a Syrian asylum applicant violated the ECHR

 
On the 15th October 2024, the European Court of Human Rights (ECtHR) ruled in the case of H.T. v. Germany and Greece (Application No. 13337/19). The case concerned a Syrian national who was removed from Germany to Greece under an administrative arrangement between the two countries, without a proper asylum procedure or any individual risk assessment. After his return to Greece, the applicant was detained for over two months in poor conditions at a police station in Leros and later at a reception and identification centre.
 
The ECtHR found a violation of Article 3 of the European Convention on Human Rights (ECHR) due to the applicant’s detention conditions in Greece. The Court determined that the applicant's treatment, specifically the poor living conditions and overcrowding in detention, amounted to inhumane and degrading treatment, referencing M.S.S. v. Belgium and Greece (Application No. 30696/09), which set out the standard for Article 3 breaches related to substandard detention conditions for asylum applicants. The Court also noted that Greece failed to provide adequate access to basic necessities such as food, hygiene, and medical care during the applicant's detention. These factors contributed to the finding that Greece had violated its obligations under Article 3 ECHR.

In addition, the Court found that Germany violated the applicant’s rights under Article 3 in its procedural aspect by failing to conduct a thorough and individual risk assessment before removing him to Greece. In this context, the Court referred to the principles established in Tarakhel v. Switzerland (Application No. 29217/12), which requires Member States to assess the risks of inhumane or degrading treatment in the receiving country before carrying out any transfers under the Dublin Regulation. The ECtHR emphasized that Germany did not take into account the known deficiencies in the Greek asylum and detention systems, despite the applicant’s vulnerable situation as a Syrian national who had already faced harsh conditions in Greece. The lack of an individualized examination of his case violated the procedural guarantees of Article 3.

However, the Court did not find a violation of Article 5 (1) regarding the applicant’s detention in Greece, as the detention was considered lawful under Greek law for the purpose of deportation, and there were no grounds to consider the deprivation of liberty arbitrary. This aspect of the ruling relied on previous case law, regarding the detention of individuals for immigration-related purposes, including Saadi v. the United Kingdom (Application No. 13229/03). The Court concluded that although the detention was legal, the conditions in which the applicant was held still violated his fundamental rights under Article 3.


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ECtHR: Malta breached ECHR with unlawful detention and inhuman treatment of unaccompanied minors

 
On the 22nd October 2024, the ECtHR ruled in J.B. and Others v. Malta (Application No. 1766/23), a case involving six Bangladeshi nationals detained in Malta following their arrival by sea in November 2022. For about two months they were held in a reception House with other adults and for another four months in the Safi detention centre with other minors. The applicants, five of whom claimed to be minors, challenged the conditions and legality of their detention under Articles 3, 5, and 13 of the European Convention on Human Rights (ECHR).
 
The Court found violations of Article 3 ECHR for five applicants, presumed to be minors, due to poor detention conditions. The ECtHR has consistently held that the detention of minors must be the subject of heightened scrutiny. The Court recalled its previous case-law, Rahimi v. Greece (Application No. 8687/08), where it established that minors, particularly unaccompanied minors, require special protection and that detention conditions which do not consider their vulnerabilities can amount to inhuman or degrading treatment. The ECtHR found that applicants were held with adults in overcrowded rooms with limited access to basic facilities, outdoor spaces, and education. It further found that the Maltese government failed to provide suitable care or support, which resulted in the severe deterioration of the applicants’ mental health. The ECtHR held that the cumulative impact of their detention conditions, coupled with their vulnerable status as minors, amounted to inhuman and degrading treatment.
 
The Court also found a violation of Article 5 (1) ECHR as the applicants’ initial detention from 18 to 30 November 2022 lacked a legal basis. Their continued detention beyond 30 November, despite being identified as minors, was arbitrary and not compliant with national laws governing detention for identity verification. Furthermore, the detention orders were issued without adequate individual assessment or consideration of less restrictive alternatives.
 
Additionally, the Court found a violation of Article 5 (4) ECHR, as the Immigration Appeals Board (IAB) was deemed ineffective for reviewing the lawfulness of detention. The IAB lacked judicial oversight, independence, and a proper review mechanism, depriving the applicants of a speedy and effective legal remedy. Finally, referring to Fenech v. Malta (Application No. 19090/20) and Story and Others v. Malta (Application Nos. 56854/13 and 2 others), the Court concluded that constitutional redress proceedings were ineffective for addressing ongoing detention conditions. The applicants lacked access to an effective domestic remedy to challenge the degrading treatment they experienced in detention. Malta was ordered to take general measures to ensure legislative reforms addressing the shortcomings of the IAB and to establish effective remedies for complaints about detention conditions.
 
The ECtHR thus ruled that Malta violated Articles 3, 5 (1) and (4), and 13 taken in conjunction with Article 3 ECHR in relation to the applicants' detention and treatment.

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ECtHR: Switzerland did not breach ECHR by rejecting Albanian family’s asylum applications

 
On the 22nd October 2024, the ECtHR delivered its judgment in the case of Y and Others v. Switzerland (Application No. 9577/21).
 
The case concerned a family of seven Albanian nationals, including the father (the first applicant), a former director of the Institute for the Study of Communist Crimes in Albania, who sought asylum in Switzerland. The applicants argued that returning to Albania would place them at risk of persecution and death due to the father’s professional activities, which had exposed former communist officials. They claimed that they had received threats from high-ranking officials and influential figures in Albania, which would endanger their lives and expose them to inhuman treatment in violation of Articles 2 and 3 of the European Convention on Human Rights (ECHR).
 
The ECtHR, following its established jurisprudence, reiterated that under Article 3 ECHR, any expulsion or deportation must be assessed rigorously to ensure that the individual would not face a real risk of torture, inhuman or degrading treatment. The Court referred to F.G. v. Sweden (Application No. 43611/11) and J.K. and Others v. Sweden (Application No. 59166/12), emphasizing the absolute nature of Article 3 ECHR, which requires a full and proper examination of the risk based on the facts. In the present case, the Court noted that Albania had been designated a “safe country of origin” by Switzerland, which presumes that asylum applicants face no persecution there. The Swiss authorities had conducted a detailed examination of the applicants’ claims, applying an extended procedure and conducting multiple interviews. The State Secretariat for Migration (SEM) found that while the first applicant had been subjected to threats and attacks by individuals, these acts were not sanctioned by the Albanian State. The Federal Administrative Court (TAF) upheld this decision, concluding that the Albanian authorities were willing and able to protect the applicants. The ECtHR, following the case of Ilias and Ahmed v. Hungary (Application No. 47287/15), found that this assessment met the procedural requirements of Articles 2 and 3 ECHR.
 
The Court further noted that the applicants had not provided sufficient evidence to rebut the presumption of safety in Albania. While the first applicant’s work had indeed provoked hostility from certain individuals, the Swiss authorities reasonably concluded that these were isolated acts not indicative of state persecution. The Court found that the Swiss authorities had considered the political situation in Albania, including reports from reliable sources, and the first applicant’s continued public appearances and media activities while in Switzerland. The ECtHR, relying on M.D. and M.A. v. Belgium (Application No. 58689/12), concluded that the Swiss authorities’ rejection of the asylum application was based on a rigorous assessment and did not violate Article 3 ECHR. As the applicants had not shown that the threats they faced amounted to a real risk of ill-treatment by state agents or that Albania was unable to protect them, the Court found no violation of Articles 2 or 3 of the Convention.


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European Union


CJEU: Unlawfulness of a detention measure under Dublin III does not affect subsequent detention for return under the Return Directive

 
On the 4th October 2024, the CJEU delivered its judgment in the case of C v. Staatssecretaris van Justitie en Veiligheid (C-387/24 PPU).
 
The case concerned a Moroccan national detained in the Netherlands under the Regulation (EU) No 604/2013 (recast) (“Dublin III Regulation”) for the purpose of transferring him to Spain, the Member State responsible for examining his asylum application. After Spain rejected the transfer request, the applicant was placed under a second detention measure under Directive 2008/115 (“Return Directive”) with the aim of returning him to Morocco. The applicant challenged the legality of his detention, arguing that his continued detention was unlawful as the first detention measure under Dublin III had become invalid following Spain's refusal, and he was not released immediately after this. The CJEU was asked whether EU law, specifically Article 15(2) and (4) of the Return Directive, Article 9(3) of Directive 2013/33 (recast) (“Reception Conditions Directive”), and Article 28(4) of the Dublin III Regulation, interpreted in light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, requires immediate release of a detained person when a previous detention measure becomes unlawful.
 
The Court held that the unlawfulness of an initial detention measure under the Dublin III Regulation does not affect the legality of a subsequent detention measure adopted under the Return Directive for the purpose of returning a third-country national. The Court emphasized that the two detention regimes, those under Dublin III and under the Return Directive, are governed by separate legal frameworks and serve different purposes. Referring to Kadzoev (C-357/09 PPU), the Court reiterated that detention under the Return Directive aims at facilitating return and must comply with the conditions laid down in that directive, independently of any previous detention for transfer under Dublin III. The Court further stressed that any detention, whether under the Dublin III Regulation or the Return Directive, constitutes a serious interference with the right to liberty, and therefore, its lawfulness must be strictly scrutinized. However, the Court found that a judicial authority is not obliged to order the immediate release of a detained individual merely because a prior detention measure had been or became unlawful, provided that the subsequent detention is based on a separate legal basis that remains valid.
 
The CJEU thus ruled that the lawfulness of a second detention measure under the Return Directive is independent of the lawfulness of a preceding detention measure under Dublin III, and there is no automatic obligation to release the detainee immediately following the unlawful status of the first detention.

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CJEU: Obligation to reassess non-refoulement risks before enforcing return decisions of third-country nationals

 
On the 17th October 2024, the Court of Justice of the European Union (CJEU) ruled in the case of Ararat (C-156/23), concerning the return of third-country nationals (TCNs) staying illegally in the Netherlands. The case involved four applicants whose international protection claims were rejected, followed by the rejection of their subsequent applications for national residence permits. Dutch authorities enforced a return decision from 2012 without reassessing whether returning them would violate the principle of non-refoulement, which prevents removal to a country where serious harm is likely. The case was referred to the CJEU to clarify the obligations of national authorities and courts under EU law in relation to non-refoulement during return procedures.
 
The Court ruled that Article 5 of Directive 2008/115 (“Return Directive”), read in conjunction with Article 19(2) of the Charter of Fundamental Rights of the European Union (CFREU), obliges national authorities to reassess the risk of non-refoulement before enforcing any return decision, even if the decision is unrelated to international protection. This requirement stems from the absolute nature of the non-refoulement principle, as established in the ECtHR previous case law, such as M.S.S. v. Belgium and Greece (Application No. 30696/09), and N.S. v. Secretary of State for the Home Department (C-411/10). The Court emphasized that this protection must be considered at all stages of the return process, ensuring individuals are not sent to countries where they face serious harm.

The CJEU further held that Article 13(1) and (2) of the Return Directive, along with Articles 5, 19(2), and 47 of the CFREU, requires national courts to assess non-refoulement risks ex officio, even if the applicant does not raise them. This is based on the right to effective judicial protection under Article 47 of the Charter. Drawing from Tarakhel v. Switzerland (Application No. 29217/12), the Court stressed that judicial authorities must examine return decisions for potential breaches of the non-refoulement principle to prevent violations of fundamental rights. National courts must ensure that all decisions are based on up-to-date assessments, guaranteeing compliance with EU law and fundamental human rights protections.

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EUAA: Publication of a report containing jurisprudence on the application of the Temporary Protection Directive, 10 October 2024 

 
On the 10th October 2024, the European Union Agency for Asylum (EUAA) released a report examining court rulings related to the implementation of the Temporary Protection Directive. The report reviews judgments, decisions, and interim measures issued by national courts and the Court of Justice of the European Union (CJEU) concerning the application and enforcement of the Temporary Protection Directive, as well as the Council Implementing Decisions 2022/382 of 4 March 2022 and 2023/2409 of 19 October 2023.
 

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National Developments


Italy: The Tribunal of Rome invalidates the decisions regarding the detention of migrants in the Gjader repatriation centre in Albania

 
On the 18th October 2024, the Tribunal of Rome invalidated all the decisions imposing detention to twelve third country nationals, all of them nationals of either Bangladesh or Egypt, who had been transferred in the Gjader repatriation centre in Albania after finding that the two countries could not be considered safe countries of origin.
 
In two of those decisions, concerning a Bangladeshi and an Egyptian national, the Tribunal examined the detention order in light of Article 4 the Protocol between the Government of the Republic of Italy and the Council of Ministers of the Republic of Albania regarding the reinforcement of collaboration in the area of migration (the Protocol) which states that the entry and stay of migrants in Albanian territory shall take place with the sole aim of conducting border or return procedures under national and EU law.
 
Analysing the national law, the Tribunal noted that the detention was based on the application of a border procedure, which was applicable on the ground that the foreign nationals came from a country of origin designated as safe and considered it relevant to assess the cases in light of the recent judgment by the Court of Justice of the EU (CJEU) in Case C-406/22. In that judgment, the CJEU found that Article 37 of Directive 2013/32 (the Asylum Procedures Directive, precludes a third country from being designated as safe where parts of its territory do not satisfy the requirements of safety. The Tribunal referred to the CJEU’s reasoning which stated, inter alia, that the special examination scheme that the safe country concepts allow should be subject to a strict interpretation due to its exceptional character.
 
In this line, the Tribunal noted that Egypt and Bangladesh had been designated as safe countries of origin with exceptions for certain categories of individuals: in respect of Egypt, such categories include political dissidents and human rights defenders; in respect of Bangladesh, the excluded categories include LGBTQI+ individuals, victims of gender-based violence, ethnic and religious minorities, persons accused of political crimes, persons under sentence of death and people affected by climate-related displacement. In light of the relevant CJEU judgment, these countries could not be designated as safe. Consequently, the Tribunal found that the border procedure is not applicable and the detention lacks legal basis.

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Belgium: Humanitarian visa refusal annulled for lack of sufficient motivations in residence permit denial

 
On 9th September 2024, the Belgian Council for Alien Law Litigation (Conseil du Contentieux des Étrangers, CCE) delivered its ruling in case 311 600 / III.
 
The case concerned Afghan applicants who applied to the Belgian Embassy in Iran for a residence permit on humanitarian grounds on the basis of Article 9 of the Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals. In support of their application, the applicants referred to their situation in Afghanistan, the lack of any prospect of residence in Iran, and their family ties with the applicant's parents, who had been recognised as refugees in Belgium. This application gave rise to a visa refusal decision taken by the Belgian State, the defendant, on 3 January 2024. The defendant considered that the applicants had not produced proof of their family ties with their family in Belgium. The applicants challenged this refusal decision, relying notably on Article 62 of the Law of 15 December 1980 and on Articles 2 and 3 of the Law of 29 July 1991 relating to the reasoning of administrative acts.
 
The Belgian Council for Alien Law Litigation pointed out that, although the Belgian State has discretionary powers with regard to the issue of a residence permit for more than three months on the basis of Article 9 of the Law of 15 December 1980, it has an obligation to reason its decision and not to make a manifest error of assessment or abuse its powers. It also states that this obligation to deliver reasoned decisions must enable the addressee of the decision to understand the grounds on which the administrative authority took its decision. This obligation does not imply the detailed refutation of each of the arguments put forward by the applicant, but only implies the obligation to inform the applicant of the reasons which determined the contested act, provided that the reasoning nevertheless responds to the essential arguments of the applicant.
 
In this case, the Court noted that the applicants had submitted several documents in support of their visa application, including email correspondence with an NGO outlining their situation and explaining why they had not received a response to their initial request. Additionally, the applicants provided a 19-page letter from the International Refugee Assistance Project (IRAP) detailing their family circumstances, and an email from the same organization to the Belgian authorities stressing the urgency of their case. Despite this, the Belgian State merely asserted that none of the documents submitted undermined its decision without further explanation. The Council found this reasoning insufficient and observed that the State’s decision contradicted the evidence provided by the applicants.
 
As a result, the Council for Alien Law Litigation ruled that the refusal to issue a humanitarian visa failed to meet the requirements of Article 62 of the Law of 15 December 1980 and Articles 2 and 3 of the Law of 29 July 1991. The decision to deny the visa was therefore annulled.

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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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