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ELENA Weekly Legal Update (EWLU)

29 November 2024
 

Summary


Council of Europe
 

Council of Europe


ECtHR communicated case: Immigration detention of a family with young children in the Netherlands and its compatibility with the ECHR

 
On 7 November 2024, the ECtHR communicated the case of A.B.A. and Others v. the Netherlands (Applications Nos 27637/23 and 19542/24), which concerns the detention of a Nigerian family, including three children aged 2, 4, and 5, in the GGV Zeist facility, adapted for families and unaccompanied minors. The family, whose asylum requests were denied, was detained for 33 days. The ECtHR has asked whether the detention conditions for the children violated Article 3 of the European Convention on Human Rights (ECHR), whether effective remedies under Article 13 ECHR were available, and whether the detention complied with Article 5(1)(f) and (4) ECHR, particularly regarding less restrictive measures and timely judicial review of the detention's lawfulness.

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ECtHR communicated case: Forced removal of Haitian nationals from Guadeloupe to Haiti and its compatibility with the ECHR

On 31 October 2024, the European Court of Human Rights (ECtHR) communicated the case of O.J. and Others v. France (Application No 4527/24) and five other related cases.
 
The applicants, Haitian nationals residing in Guadeloupe, are challenging their forced removal to Haiti. They argue that, due to the ongoing violence in Haiti, such removal would violate their rights under Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights (ECHR). The applicants claim that their asylum requests have not been properly considered and that their removal would expose them to a risk of harm. The ECtHR has asked the parties to address several questions, including whether the applicants would face a real risk of ill-treatment if deported to Haiti, whether the French authorities have conducted an adequate assessment of their individual risks, and whether they had access to an effective remedy under Article 13 of the ECHR to challenge their deportation.

Based on an unofficial translation from within the EWLU team.

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ECtHR communicated case: Expulsion of Syrian refugee from Bulgaria and its compatibility with the ECHR

On 28 October 2024, the European Court of Human Rights (ECtHR) communicated the case of Mohamed Sharif Husein Ahmed v. Bulgaria (Application No 15363/22).
 
The applicant, a Syrian national granted refugee status in Bulgaria in 2015, had his status revoked in 2019 following convictions for several criminal offenses, including using forged documents and aiding illegal border crossings. The Bulgarian authorities imposed an expulsion order in 2020, which was upheld by the Supreme Administrative Court in 2021.
The applicant argues that his return to Syria would expose him to the risk of torture or inhuman treatment, violating Article 3 of the European Convention on Human Rights (ECHR). He also claims that he did not have an effective remedy to protect his rights as required under Article 13 ECHR. The Court has asked the parties whether the applicant’s return to Syria would violate Article 3 ECHR, given the current situation in Syria, and whether Bulgaria provided an effective remedy as required by Article 13 to protect the applicant’s rights under Article 3 ECHR.

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European Union


EUAA: Publications of a practical guide on applicants with diverse sexual orientations, gender identities, gender expressions and sex characteristics

On 15 November 2024, the European Union Agency for Asylum (EUAA) published an information note and a series of practical guides on applicants with diverse sexual orientations, gender identities, gender expression and sex characteristics (SOGIESC).

The information note aims to enhance the skills of professionals working in the field of asylum regarding key concepts relating to SOGIESC. The practical guide is divided in three complementary parts on the examination procedure relating to the examination of application for international protection with SOGIESC-based claims, the management of reception systems and the provision of reception conditions taking into account the specific needs of SOGIESC applicants, and on elements that are cross-cutting and relevant to both asylum procedures and reception.
 
This practical guide drafted by the EUAA includes references to both the Common European Asylum System (CEAS) and the new Pact on Migration and Asylum entered into force in June 2024 which will enter into application in June 2026.

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EUAA: Publication of country guidance on Iraq (November 2024)

On 14 November 2024, the European Union Agency for Asylum (EUAA) published its Country Guidance on Iraq which provides an in-depth analysis of the situation in Iraq, focusing on the key elements of qualification for international protection. It provides the analysis and guidance in relation to the assessment criteria established in the recast Qualification Directive (QD) and in the newly adopted Qualification Regulation, which will repeal the QD with its entry into force on 1 July 2026. This country guidance aims to assist decision-makers and policy-makers in their daily work and to foster convergence in the assessment of applications for international protection and the type of protection granted in the context of the Common European Asylum System. This country guidance is primarily based on country-of-origin information concerning the period from January 2024 to March 2024. It provides information about recent developments in Iraq; actors of persecution or serious harm; refugee status; subsidiary protection; actors of protection; international protection alternative; applicability of the exclusion grounds in relation to acts committed by applicants from Iraq.
 

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National Developments


Germany: No inhuman or degrading conditions for non-vulnerable refugees returning to Italy

 
On 21 November 2024, Germany’s Federal Administrative Court (BVerwG) issued two landmark rulings (BVerwG 1 C 23.23 and BVerwG 1 C 24.23) under the newly introduced “factual revision” procedure (Asylum Law, §78(8)). The cases involved two women, of Somali and Syrian nationality, recognized as refugees in Italy but who later sought asylum in Germany. Their asylum applications were rejected as inadmissible, and deportation to Italy was ordered.
 
The BVerwG upheld these decisions, concluding that non-vulnerable, employable refugees with international protection status face no substantial risk of inhuman or degrading treatment upon return to Italy under Article 4 of the EU Charter of Fundamental Rights. The Court emphasized the availability of temporary housing, employment opportunities, and basic healthcare provided by municipalities, NGOs, and churches in Italy.
 
Based on an unofficial translation from within the EWLU team.

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Netherlands: No automatic risk for Afghans nationals returning from the West

On 20 November 2024, the Dutch Council of State ruled in three linked cases (202301071/1; 202401462/1; 202401559/1) that Afghan nationals returning to Afghanistan from Western countries do not, by that fact alone, face a real risk of inhuman or degrading treatment under Article 4 of the EU Charter of Fundamental Rights and Article 3 of the European Convention on Human Rights. The court emphasized that while Afghans may be subject to Taliban scrutiny upon return, the evidence does not establish a systematic risk for all Western returnees.
 
The cases concerned Afghan asylum applicants whose requests were rejected. They argued that their time in Western countries exposed them to heightened danger upon return to Afghanistan, particularly due to perceptions of "Westernization" and alleged non-compliance with Islamic norms. However, the Council of State found that risks must be assessed based on individual circumstances, as required under Article 31 of the Aliens Act 2000 (Vw 2000) and Article 4 of the recast Qualification Directive (Directive 2011/95/EU). These provisions mandate that decision-makers evaluate individual claims, including personal histories, specific threats, and any connections to groups or individuals targeted by the Taliban.
 
The Dutch Council of State also noted the lack of consistent and reliable information on the treatment of Afghan returnees. Reports presented a mixed picture: some sources indicated that returning Afghans faced scrutiny or suspicion, while others suggested that the Taliban’s approach was more lenient, focusing primarily on personal elements rather than mere fact of residence abroad. The Council of State confirmed that asylum applications must be evaluated comprehensively, taking into account individual vulnerabilities and the broader security context.
 
Based on an unofficial translation from within the EWLU team.

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Denmark: The Danish Refugee Appeals Board decides that asylum seekers cannot be transferred to Italy in accordance with the Dublin III Regulation

On 22 November 2024, the Danish Refugee Appeals Board decided on the so-called trial cases regarding Dublin transfers to Italy. The cases concerned single men. The Refugee Appeals Board found that the Italian state of emergency, which in October 2024 was extended for an additional six months, does not in itself constitute a systemic flaw in the Italian asylum procedure. However, the Refugee Appeals Board found that it follows from the available information that there are serious problems concerning access to both the Italian asylum procedure and reception conditions and there are no reasons to think that these problems do not affect Dublin returnees too.
 
In the decisions, the Refugee Appeals Board referred to the latest AIDA Country Report on Italy, the report ‘Please, Wait’ from IRC Italy from 4 April and the report from the Commissioner for Human Rights of the Council of Europe from 21 November 2023, which describes her visit to Italy in June 2023. The Refugee Appeals Board also refers to the fact that it was mentioned in the Italian authorities’ acceptance to receive the applicants in accordance with the Dublin III Regulation, that transfers cannot be carried out until further notice, due to the unavailability of reception facilities.
 
Considering the above, the Refugee Appeals Board finds that the problems with accessing the Italian asylum system, including reception conditions, are so severe that Dublin transfers to Italy cannot take place without a guarantee from the Italian authorities that applicants soon after arrival will be registered as asylum seekers, accommodated and be able to access basic rights in accordance with Italy’s international obligations. However, under the current circumstances, the Refugee Appeals Board considers it unlikely that the Italian authorities will issue such guarantees. This, and the fact that nothing indicates that the situation will improve in the nearest future, has led the Refugee Appeals Board to decide that asylum seekers cannot be transferred to Italy in accordance with the Dublin III Regulation.
 
We would like to thank the Danish Refugee Council for bringing these cases to our attention and providing the summary.
 

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NGOs


European Network on Statelessness: Publication of a briefing on the implementation the new statelessness provisions in the EU Pact on Migration and Asylum

 
On 13 November 2024, the European Network on Statelessness (ENS) published a comprehensive briefing to support the implementation of newly adopted provisions for stateless persons within the EU Pact on Migration and Asylum. Building on its May 2024 recommendations, this briefing highlights critical measures needed to ensure the protection of stateless persons in line with international law and to prevent statelessness across EU during the implementation of the new legislation.

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Hungarian Helsinki Committee: Publication of a paper on the Rule of Law and Human Rights in Hungary

On 13 November 2024, the Hungarian Helsinki Committee (HHC) released a paper addressing the ongoing deterioration of the rule of law and human rights in Hungary.
 
In this paper, HHC highlights key rule of law and human rights concerns that exemplify the Hungarian government’s disregard for fundamental values and the erosion of domestic human rights protections. These include the shrinking civic space exacerbated by the Sovereignty Protection Act, the persistent non-execution of European court judgments, the ability of Hungary’s highest court to obstruct the binding effect of CJEU rulings, the ongoing use of perpetuated states of exception, and the absence of an effective domestic system for safeguarding human rights. The paper provides an in-depth analysis of these issues, accompanied by points of inquiry and targeted recommendations.

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ECRE


ECRE: Publication of the AIDA Temporary Protection Compilation on 2023

 
On 21 November 2024, ECRE published the AIDA Temporary Protection Compilation 2023 which consolidates annexes from the Asylum Information Database (AIDA) country reports on temporary protection across 19 EU member states and 3 non-EU countries.
 
The compilation examines the application of the Temporary Protection Directive (TPD) and similar national regimes, with a particular focus on responses to the displacement caused by Russia's invasion of Ukraine. As of autumn 2024, since the EU’s activation of the TPD on 4 March 2022, over 4.1 million individuals have continued to benefit from temporary protection in the EU. Key achievements include prioritizing access to protection, maintaining immediate and automatic protection status, and ensuring access to substantive rights through harmonized practices and EU-level support. However, two years into implementation, challenges persist, including inconsistent interpretation of the TPD, unequal distribution of beneficiaries across states, and reduced rights for non-Ukrainian nationals. There is also a notable decline in financial allowances and access to housing, education, and employment, reflecting the absence of a long-term inclusion strategy. The report underscores the importance of monitoring and mapping implementation to uphold fundamental rights, address gaps, and promote best practices for integrating displaced populations and strengthening broader asylum systems.

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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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