Council of Europe
ECtHR: Switzerland breached ECHR by failing to assess the risk of ill-treatment in Iran for a homosexual applicant
On 12 November 2024, the European Court of Human Rights (ECtHR) delivered its judgment in the case of M.I. v. Switzerland (Application No 56390/21).
The case concerned a homosexual Iranian national who claimed that he had to leave Iran when his family discovered his sexual orientation. His asylum application was rejected by the Swiss authorities, who concluded that the applicant would not be exposed to any risk in Iran if, after his return, he continued to lead his private life there in a discreet manner. The applicant's deportation was suspended in November 2022, pending the outcome of the proceedings before the ECtHR, which granted his request for interim measures under Rule 39 of the Rules of Court. With regard to Articles 2 and 3 of the European Convention on Human Rights (ECHR), the applicant alleged that he would be exposed to a real and imminent risk of being arrested, ill-treated or killed by the authorities, his family or society in general. In particular, he claimed that the Swiss authorities had failed to carry out a full assessment of the risks associated with his deportation to a country where homophobia and discrimination against LGBTQI+ people are rife. He also invoked Articles 13 and 14 ECHR.
The ECtHR held that Switzerland’s rejection of the applicant’s asylum request without a full reassessment of his risk of ill-treatment violated Article 3 ECHR. Citing J.K. and Others v. Sweden (No 59166/12) and B and C v. Switzerland (Nos 889/19 and 43987/16), the Court emphasized that when assessing the credibility of their statements, asylum applicants should be given the benefit of the doubt. It also recalled that applicants should not be required to conceal their sexual orientation to avoid persecution. Recalling its previous caselaw, the Court reiterated that in the context of an asylum application based on a known general risk, when information on that risk is available from various sources, it is for the authorities to carry out an assessment of that risk and a failure to do so would constitute a violation of Article 3 ECHR. In that sense, the ECtHR further stressed that it is the duty of States to rigorously assess risks of ill-treatment, considering the unique vulnerabilities of LGBTQI+ individuals in hostile environments, particularly where homosexuality is illegal.
The Court found that Swiss authorities had not conducted a sufficient evaluation of the applicant’s risks, either from State persecution or from his family and society in Iran, underlining that the applicant’s risk could be exacerbated by societal norms and the criminalization of homosexuality, as detailed in the UNHCR Guidelines on International Protection ( HCR/GIP/12/09). Moreover, the Court highlighted that Swiss authorities failed to verify whether the applicant could obtain State protection against non-State actors, as required under the aforementioned case law. The ECtHR concluded that Switzerland’s decision to deny asylum, without addressing these potential risks or assessing available State protection, amounted to a breach of Article 3. Consequently, the Court decided to continue to indicate to the Government of Switzerland under Rule 39 that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until this judgment becomes final.
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ECtHR: Hungary violated ECHR through unlawful immigration detention
On 14 November 2024, the European Court of Human Rights (ECtHR) rendered its judgment in the case of G.H. v. Hungary (Application No 75727/17).
The case concerned an Iraqi national, G.H., who entered Hungary in September 2015 via the “Western Balkan route”. The applicant was detained for 2 days after his entry and applied for asylum. After his release, he travelled to other European countries before returning to Hungary in January 2016. Following a rejected asylum application, he was detained by Hungarian authorities on 3 January 2017, on the basis of a risk of absconding, based on his previous departure from Hungary. The applicant contested his detention under Article 5(1) of the European Convention on Human Rights (ECHR), arguing that the risk of absconding was unfounded and that alternatives to detention had not been considered.
The ECtHR, affirming that the applicant’s detention was governed by Article 5(1)(f) of the Convention, analyzed whether Hungary’s actions adhered to domestic and Convention standards. The Court underscored that Article 5(1) requires that any deprivation of liberty must not only follow domestic law but must also be free from arbitrariness. It referred to its established case law, including Khlaifia and Others v. Italy (Application no. 16483/12) and Nabil and Others v. Hungary (Application no. 62116/12), stating that detention intended to secure deportation must be based on a genuine risk of non-compliance and substantiated by a reasoned assessment. The Hungarian immigration authority based its decision primarily on the applicant’s past departure from Hungary during his initial asylum process. However, the Court found this rationale inadequate under Hungarian law, particularly section 126 (5a) of the Immigration Decree, which establishes that a risk of absconding requires evidence of non-cooperation in the immediate immigration proceedings. In assessing the necessity of the detention, the Court found that the Hungarian authorities failed to duly consider the applicant’s conduct since his return, which showed consistent compliance and cooperation.
The Court pointed out that the applicant’s behavior after January 2016 (remaining at the designated place, regularly reporting, and presenting a willingness to cooperate) countered the alleged risk of absconding and should have precluded detention. The Court further noted that according to Hungarian law and the jurisprudence of the Kúria, the Hungarian Supreme Court, immigration detention is only lawful when other, less restrictive measures, such as reporting obligations or designated accommodation, cannot ensure compliance with expulsion orders. Given that the applicant had been compliant with previous non-custodial measures, the Court determined that detention was neither necessary nor proportionate in his case. Additionally, the Court criticized the limited scrutiny applied by the Hungarian courts in their review of the detention orders. The Court found that the Kiskunhalas and Győr District Courts merely endorsed the immigration authority’s assertions without properly evaluating whether the applicant’s detention remained justified or whether his removal was a realistic prospect. The Court highlighted that under Article 5, judicial review must be substantive and rigorous and concluded that Hungary violated Article 5(1) ECHR.
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European Commission against Racism and Intolerance: UK urged to enhance support for refugees and develop an LGBTI action plan
On 24 October 2024, the European Commission against Racism and Intolerance (ECRI) published its report on the United Kingdom, emphasizing priority recommendations for improved support for refugees and the establishment of an LGBTI action plan in England.
The report addresses the challenges faced by newly recognized refugees who are given a 28-day “move-on period” to transition from asylum support to mainstream social systems. ECRI highlights that this period often results in homelessness and destitution, impacting refugees’ smooth integration. Additionally, while Scotland and Wales have made progress with local LGBTI action plans, ECRI urges the UK to develop a national plan for England.
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National Developments
Austria: The Supreme Administrative Court overturns the granting of asylum to a minor Syrian applicant, citing lack of verifiable risk of persecution
On 14 October 2024, the Austrian Supreme Administrative Court (VwGH) issued its judgment Ra 2024/20/0491-14, reversing the Federal Administrative Court's decision to grant asylum to a 16-year-old Syrian applicant from Idlib, originally given asylum status by the lower court under the 2005 Asylum Act.
The applicant sought asylum on grounds of fear of persecution from, on the one hand, Hay’at Tahrir al-Sham (HTS), which controls areas near his residence, and on the other hand, the Syrian government. He argued that HTS might coerce him into military conscription, citing the organization’s past practices of forcibly recruiting minors. Additionally, he expressed fear of punishment by the Syrian regime if returned, due to his refusal to serve in the military and prior involvement in anti-regime protests. The Federal Office for Immigration and Asylum (BFA) denied the applicant’s request for asylum but granted subsidiary protection status. The Federal Administrative Court (BVwG) upheld the applicant's appeal against the asylum denial and granted asylum status. The BVwG considered that he was at risk of asylum-relevant persecution due to expected forced recruitment by the HTS, which exercises control in the applicant’s region. The applicant's actual place of origin is under the control of the Syrian government, but the applicant is also at risk of persecution there because of his announced refusal to perform military service in the Syrian army.
The VwGH overturned the BVwG’s decision, focusing on whether the applicant faced a specific, immediate risk of persecution that would justify asylum under the 1951 Geneva Convention standards. The VwGH found that while HTS exercises control in certain areas of Idlib, there was insufficient evidence that HTS currently practices forced recruitment of minors. Moreover, it noted that recent country reports indicated a decline in coerced recruitment, as HTS relies on voluntary enlistment due to sufficient local support. Regarding the risk posed by the Syrian regime, the VwGH highlighted that the applicant, at 16, is below the legal military conscription age of 18 in Syria, which undermines the claim of immediate risk of punishment for refusal to serve. It further noted that no evidence directly linked the applicant's avoidance of military service or anti-regime sentiments with any persecution specifically targeting him. The VwGH determined that the applicant did not meet the required standard for a well-founded fear of persecution under the 1951 Geneva Convention due to the lack of verifiable, immediate threats. Consequently, it revoked his asylum status, asserting that his current protected subsidiary status, which provides temporary residency, sufficiently addresses any potential risk.
Based on an unofficial translation from within the EWLU team.
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Germany: New Security Package inducing changes in asylum and residency law
The recent “Security package”, contained in the Law to improve internal security and the asylum system which entered into force on 31 October 2024, introduces key amendments to Germany’s asylum and residency laws, aiming to streamline asylum processes and bolster national security. It modifies the Asylum Applicant Benefits Act and other asylum-related statutes by limiting benefits for certain applicants, increasing reporting requirements, and introducing stricter identity verification measures.
Under the new rules, asylum applicants rejected under the Dublin Regulation no longer qualify for general asylum benefits. Instead, they may receive temporary “bridging assistance” for two weeks, with extended support provided only in exceptional hardship cases. The amendments also limit healthcare to acute and pain-related treatments, while other social benefits are curtailed. These restrictions extend to those with recognized protections in other EU or Dublin states, creating a more restrictive benefits framework. Enhanced reporting requirements compel law enforcement and judicial authorities to inform the Federal Office for Migration and Refugees (BAMF) about criminal proceedings against asylum applicants. Cases involving potential sentences of three years or more, people-smuggling, or hate-motivated offenses will be reported, enabling BAMF to consider these in ongoing or pending asylum evaluations. A new provision, §15b of the Asylum Act, authorizes BAMF to use automated photo cross-referencing with publicly available internet images to verify the identities of applicants without valid identification. This measure will be reviewed after three years to assess its impact and adherence to anti-discrimination standards.
Amendments to §73 of the Asylum Act presume that asylum applicants traveling to their countries of origin no longer require protection, leading to potential refugee status revocations unless travel is for “morally compelling” reasons, such as a family emergency. Further revisions expand the grounds for excluding applicants from refugee protection based on criminal history. §3(4) of the Asylum Act disqualifies individuals convicted of crimes punishable by at least three years, including youth sentences. New provisions in Sections 8a and 8b of the Residence Act outline additional exclusions for serious offenses, such as human trafficking or violent acts against public officials. Lastly, the revised Residence Act (§54) expands “particularly serious” and “serious” grounds for deportation.
Based on an unofficial translation from within the EWLU team.
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Italy: The Regional Administrative Court for Veneto (TAR) mandates disclosure of monthly disaggregated data on asylum applications submitted to the Vicenza Commission for International Protection
On 29 October 2024, the Regional Administrative Court (TAR) of Veneto issued its judgment No 2548/2024.
The case involved the Associazione Studi Giuridici sull’Immigrazione (ASGI), which sought access to monthly disaggregated data on international protection applications submitted to the Vicenza office of the Verona Territorial Commission for International Protection for the years 2022-2024. ASGI filed a generalized access request on 11 March 2024, seeking data specifically disaggregated by month, but received only aggregated annual data on 5 June 2024, following a denial by the Commission and rejection of a review request. ASGI contended that the denial of its request was unlawful under Italy’s transparency laws (Legislative Decree no. 33/2013), which grant broad rights to public access to government-held data to enhance public accountability. ASGI argued that the data sought—monthly statistics on asylum applications—was readily accessible in the Vestanet software, a database used by the Commission to manage international protection cases, and therefore did not constitute "newly processed data." ASGI cited similar disclosures by the Padova Territorial Commission to show that monthly data could be extracted through simple queries without requiring the Commission to undertake a significant data processing operation. ASGI claimed that the Commission's denial breached principles of transparency and reasonableness and violated guidelines from Italy’s Anti-Corruption Authority (ANAC), which mandate administrative cooperation and minimal data filtering for civic access requests.
The TAR agreed with ASGI’s interpretation, finding that the requested monthly disaggregation did not involve complex processing or re-creation of information, which would be exempt from mandatory disclosure. The court emphasized that under Italy’s transparency laws, civic access encompasses not only document inspection but also access to specific “data” as long as it exists within an accessible format. It held that the use of search keys in Vestanet to filter by month represented a reasonable action within the Commission's ordinary capabilities. The court cited principles of collaboration and good faith in public administration, underscoring that authorities should fulfill citizen requests that are feasible and impose no undue burden. The TAR ordered the Commission to provide ASGI with the requested monthly disaggregated data within 30 days, reinforcing that basic data extraction requests fall within public administration's obligations to transparency. Costs were mutually compensated.
Based on an unofficial translation from within the EWLU team.
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Italy: Tribunal of Rome submits series of preliminary questions to the CJEU on the modalities of the designation of safe country lists
On 11 November, the Tribunal of Rome (Civil Section), during its examination of a case of a third country national who was detained in the Gjader repatriation centre in Albania, submitted a series of preliminary questions to the Court of Justice of the EU (CJEU) regarding aspects of the procedure of designation of safe country lists under EU law:
- Does European Union law, and in particular Articles 36, 37 and 38 of Directive 2013/32/EU (Asylum Procedures Directive – APD), read also in conjunction with Recitals 42, 46 and 48 thereof, and interpreted in light of Article 47 of the Charter of Fundamental Rights of the European Union (and Articles 6 and 13 of the ECHR), preclude a national legislature, competent to permit the drawing up of lists of safe countries of origin and to regulate the criteria to be followed and the sources to be used for that purpose, from also proceeding to designate directly, by primary legislative act, a third country as a safe country of origin?
- In any event, does European Union law, in particular Articles 36, 37 and 38 APD, read in conjunction with recitals 42, 46 and 48 in the preamble thereto and interpreted in light of Article 47 of the Charter of Fundamental Rights of the European Union (and Articles 6 and 13 of the ECHR), at the very least preclude the legislature from designating a third country as a safe country of origin without making accessible the sources used to justify that designation, thus preventing the asylum applicant from contesting it and the court from reviewing its origin, its authoritativeness, reliability, relevance, topicality, completeness and, in any event, its content in general, and to draw their own assessment as to whether the substantive conditions for such a designation, set out in Annex I to the APD, are satisfied?
- Must European Union law, and in particular Articles 36, 37 and 38 of that directive, read also in conjunction with recitals 42, 46 and 48 in the preamble thereto, and interpreted in light of Article 47 of the Charter of Fundamental Rights of the European Union (and Articles 6 and 13 of the ECHR), be interpreted as meaning that, in the course of an accelerated border procedure based on the applicant’s country being designated as a safe country of origin, including the validation phase of the detention order, the court may in any event use information on the country of origin, drawing it independently from the sources referred to in Article 37(3) of the Directive, which is useful for ascertaining whether the substantive conditions for such designation, set out in Annex I to the Directive, are met?
- Does European Union law, in particular Articles 36, 37 and 38 of the directive and Annex I thereto, read in conjunction with recitals 42, 46 and 48 in the preamble thereto and interpreted in the light of Article 47 of the Charter of Fundamental Rights of the European Union (and Articles 6 and 13 of the ECHR), preclude a third country from being designated as a 'safe country of origin' where there are, in that country, categories of persons for whom it does not meet the substantive conditions for such designation set out in Annex I to the Directive?
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NGOs
RSA: Severe lack of interpreters affecting asylum procedures in Greece
In a brief published on the 5 November 2024, RSA reports significant deficiencies in interpretation services within Greece’s asylum process, which impact both refugee camps and the Greek Asylum Service. Interpretation shortages have delayed asylum registrations and interviews at Regional Asylum Offices and Asylum Units, often without informing asylum seekers. In some cases, asylum applicants have been required to sign declarations that they understand Greek or to accept interpretation from uncertified third parties, despite legal obligations for the state to provide qualified interpreters that can provide services in a language the applicant understands.
As of June 30, 2024, only 69 interpreters covered all refugee camps in Greece, averaging one interpreter per 267 people. Interpretation services were further affected when METAdrasi, the sole provider, stopped operating in May 2024 due to contract expiration and payment delays. This cessation halted Asylum Service interpretation support. The EU Asylum Agency (EUAA) offered temporary relief by deploying 239 interpreters, but this support decreased in mid-September 2024, as it was not intended to meet Greece’s long-term interpretation needs.
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Hungarian Helsinki Committee: Access to classified information in national security cases in the EU
In October 2024, the Hungarian Helsinki Committee (HHC) published Clear Principles, Divergent Practices: The Right to Know in National Security Related Immigration Matters in EU Member States, a policy brief summarizing findings from a comparative study on foreign nationals’ rights to access to classified information in immigration-related proceedings across the EU. The study examines national frameworks and their alignment with CJEU and ECtHR standards, which require that applicants be informed of the "essence of the grounds" for being deemed a national security threat.
The report reveals that, in one-third of the EU Member States examined, applicants are not provided with the substance of the allegations against them and often lack procedural avenues to challenge these accusations. In certain Member States, access to classified data is restricted unless declassified, with limited or no judicial oversight of classification lawfulness. Additionally, judicial oversight is sometimes viewed as a substitute for the applicant’s right to know, creating procedural disparities. The findings emphasize the need for adherence to CJEU and ECtHR standards, particularly as the EU’s Pact on Migration and Asylum brings national security considerations further into focus.
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HRW: Call for France to protect rights of migrants, asylum applicants and refugees
In a 5 November 2024 letter, Human Rights Watch (HRW) called on French Prime Minister Michel Barnier to prioritize human rights, particularly for migrants, asylum seekers, and refugees, in his national and international policies. HRW criticized France's recent migration law, which it labeled as “the most regressive in decades,” and expressed concern over anti-migrant rhetoric from government officials. The organization documented incidents of police harassment, restricted access to humanitarian aid, and inadequate support for unaccompanied minors. HRW urged France to ensure humane treatment, uphold asylum rights, and collaborate with the UK on safe migration pathways.
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