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ELENA Weekly Legal Update (EWLU)

17 January 2025
The EWLU will continue on a fortnightly basis for the coming weeks
 

Summary


Council of Europe

Council of Europe


ECtHR: Greece violated ECHR through unlawful detention and pushback of a Turkish applicant


On 7 January 2025, the European Court of Human Rights (ECtHR) delivered its judgment in A.R.E. v. Greece (Application no 15783/21). The case concerned a Turkish national who, after being sentence to 6 years and 3 months imprisonment for membership of an organization described by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure”, fled and crossed the Evros River into Greece on 4 May 2019 to seek international protection. She was apprehended by Greek police, detained without legal justification, deprived from her personal belongings and subsequently expelled to Türkiye without her asylum application being processed. The applicant alleged violations of Articles 2, 3, 5, and 13 of the European Convention on Human Rights (ECHR).
 
First, the Court noted that numerous official reports documented a consistent modus operandi by Greek authorities of forcibly returning migrants, particularly from the Evros region, without examining their protection claims. These reports, published by credible national and international organizations, described uniform methods involving detention, confiscation of belongings, and forced returns. Based on this evidence, the Court concluded that a systematic practice of pushbacks existed at the time of the applicant’s expulsion. The Greek government failed to refute this evidence or provide an alternative explanation for the applicant’s allegations. The Court underscored that such practices do not absolve States from their obligations to assess individual cases and ensure compliance with ECHR standards.
 
The ECtHR then noted substantial evidence of significant risks faced by political opponents in Türkiye post-2016 coup. It found that Greek authorities failed to consider these risks or provide the applicant an opportunity to apply for asylum and explain her circumstances. The applicant, having crossed into Greece via the Evros River, was expelled to Türkiye without any assessment of the dangers she faced, in clear violation of domestic and international law. Despite her expressed fears of persecution, Greek authorities ignored her asylum request, breaching Articles 3 and 13 by failing to evaluate her claims or provide an effective remedy against her expulsion.
 
Regarding the alleged violation of Article 5(1) ECHR, the ECtHR ruled that the applicant's detention was devoid of any legal basis under Greek law. The authorities failed to document the detention formally, did not inform the applicant of the reasons for her arrest, and provided no opportunity to challenge its legality, contrary to Article 5(2) and (4).
 
Finally, regarding the risk to life and ill-treatments faced by the applicant during the pushback, the Court found that the applicant failed to provide sufficient prima facie evidence to prove that her life was at risk during her pushback to Türkiye across the Evros River. While acknowledging the distress she may have endured, the Court held that the methods used during the pushback did not meet the severity required to qualify as inhuman or degrading treatment under Article 3. Consequently, it found no violation of Articles 2 and 3 in this regard. However, regarding the lack of an effective remedy, the Court determined that Greece’s legal system failed to provide adequate mechanisms to address alleged violations of Articles 2 and 3 during the pushback. The investigation into the applicant’s criminal complaint was deemed insufficient and did not meet the effectiveness standards required under the Convention. This constituted a violation of Article 13, read in conjunction with Articles 2 and 3.

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ECtHR: Application alleging pushback of an Afghan national by Greece declared inadmissible for lack of evidence

On 7 January 2025, the European Court of Human Rights (ECtHR) ruled in the case of G.R.J. v. Greece (Application no 15067/21), unanimously declaring the application inadmissible.
 
The case concerned an Afghan national, then an unaccompanied minor, who alleged that upon reaching the Greek island of Samos in September 2020 he was subject to a pushback by Greek coastguard officers, who left him adrift in the Aegean Sea. He claimed he was subsequently rescued by Turkish authorities and alleged violations of Articles 2, 3, and 13 of the European Convention on Human Rights (ECHR).
 
The ECtHR acknowledged the strong evidence of systematic pushbacks by Greek authorities, as corroborated by numerous national and international reports. However, it emphasized that systemic practices do not exempt applicants from providing prima facie evidence for their specific claims. The applicant failed to substantiate his presence in Greece or to demonstrate a link between his alleged arrival on Samos and his subsequent rescue in Türkiye. The Court noted inconsistencies in his statements and ruled that he could not establish victim status under Article 34 of the Convention.
 
As a result, the application was dismissed under Article 35(4), rendering further examination of the case unnecessary.

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European Union


CJEU: Judgment concerning the extension and cessation of temporary protection for third country nationals

On 19 December 2024, the Court of Justice of the European Union (CJEU) rendered its judgment in Kaduna (Joined Cases C-244/24 and C-290/24), referred by the District Court of The Hague and the Council of State of the Netherlands. The cases concerned the interpretation of Directive 2001/55/EC (‘Temporary Protection Directive’) and the moment an EU Member State may terminate such protection or issue return decisions under Directive 2008/115/EC (‘Return Directive’). The disputes arose from decisions of the Netherlands to terminate temporary protection granted to certain third-country nationals who fled Ukraine following the Russian invasion and to issue return decisions requiring them to leave the EU. Specifically, the Netherlands had initially extended temporary protection to individuals not explicitly covered by Council Implementing Decision (EU) 2022/382, pursuant to Article 7 of the Temporary Protection Directive, but subsequently decided to revoke such protection for these individuals.
 
The referring courts asked the CJEU whether Member States that have exercised the discretion under Article 7(1) of the Temporary Protection Directive to grant temporary protection to additional categories of displaced persons may terminate such protection before the expiration of the Council's decision to extend protection under Article 4(2). They also questioned whether return decisions issued before the end of temporary protection violate Article 6 of the Return Directive, especially if such decisions only take effect after the protection has ceased.
 
The CJEU ruled that the Temporary Protection Directive must be interpreted as not precluding a Member State that has granted temporary protection to additional categories of displaced persons under Article 7(1) from terminating such protection before the expiration of the period established under Article 4(2). When deciding to terminate that protection, the Member State must ensure that the measure does not undermine the objectives and effectiveness of Directive 2001/55 and that it complies with the general principles of Union law.
 
Regarding the issuance of return decisions, the Court clarified that Article 6 of the Return Directive prohibits Member States from subjecting a third-country national who is lawfully resident as a beneficiary of temporary protection to a return decision before that protection has ended, even when it is likely that the protection will cease in the near future and the effects of such a decision are suspended until the cessation enters into force.
 
This is a corrected version of the summary published in a previous edition of the EWLU of 17.01.2025.

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CJEU: Court rules that unilateral suspension of Dublin transfers does not demonstrate systemic flaws in the asylum procedure

On 19 December 2024, the Court of Justice of the European Union (CJEU) delivered its judgment in Tudmur (Joined Cases C-185/24 and C-189/24), following a request for a preliminary ruling from the Higher Administrative Court for the Land of North Rhine-Westphalia, Germany.
 
The case concerned the interpretation of the second subparagraph of Article 3(2) of Regulation (EU) No 604/2013 (recast) (`Dublin III Regulation`) in relation to the transfer of asylum applicants to the Member State responsible for their asylum applications under the Regulation's criteria. The referring court sought clarification on whether systemic flaws in the asylum procedures and reception conditions of the Member State responsible, leading to a risk of inhuman or degrading treatment under Article 4 of the Charter of Fundamental Rights of the European Union (‘Charter’), could be inferred solely from that Member State’s unilateral suspension of the taking back or taking charge of applicants for international protection. In this case, Italy had announced a unilateral suspension of transfers due to a lack of reception facilities. The referring court also asked how such systemic flaws could be assessed when the responsible Member State refuses cooperation, making access to relevant data difficult.
 
First, the Court emphasized the foundational principle of mutual trust among Member States within the EU legal framework, which is based on the presumption that all Member States respect fundamental rights. It reiterated that exceptions to this principle must be narrowly construed and grounded in objective, reliable, specific, and properly updated evidence demonstrating systemic flaws in the asylum procedure or reception conditions of the Member State responsible. The second subparagraph of Article 3(2) of the Dublin III Regulation sets out two cumulative conditions for precluding the transfer of an applicant to the responsible Member State. First, there must be systemic flaws in the asylum procedure and reception conditions. Second, these flaws must result in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.
 
The unilateral suspension of transfers by the Member State designated as responsible does not, in itself, constitute evidence of systemic flaws. Such a suspension may be driven by administrative or logistical challenges rather than substantive deficiencies in asylum procedures or reception conditions. Consequently, systemic flaws cannot be presumed solely on the basis of such an announcement. In circumstances where the responsible Member State refuses to take charge or take back applicants, the Court emphasized the importance of conducting a rigorous assessment based on all available evidence. This includes reports from international organizations, non-governmental organizations, and other relevant sources, even in the absence of direct cooperation from the responsible Member State.
 
The Court concluded that the second subparagraph of Article 3(2) of the Dublin III Regulation must be interpreted as meaning that a unilateral suspension of transfers by the Member State responsible does not, on its own, demonstrate systemic flaws in the asylum procedure and reception conditions that would result in a risk of inhuman or degrading treatment under Article 4 of the Charter. Such a finding requires a detailed assessment of all relevant evidence.

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United Nations


UNHCR: Publication of Guidelines on international legal standards relating to family reunification for refugees and other beneficiaries of international protection


In December 2024, the UNHCR published Guidelines on international legal standards relating to family reunification for refugees and other beneficiaries of international protection.
 
These Guidelines outline the legal standards concerning family reunification for refugees and other individuals granted international protection, in line with international and regional refugee and human rights laws. They begin by defining the right to family life and the principle of family unity as they apply to refugees and other beneficiaries of international protection, as well as explaining the concepts of family and family reunification. The Guidelines then examine procedural barriers that may hinder family reunification, including specific challenges for children. Lastly, they address other issues related to family reunification, such as restrictions on mode of arrival, access to courts, and travel documents.

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UN Human Rights Committee: Views concerning Australia's offshore asylum processing and detention in Nauru

On 25 October 2024 and 31 October 2024, the Human Rights Committee adopted its views on two communications, Mona Nabhari v. Australia (No. 3663/2019) and M.I. et al. v. Australia (No. 2749/2016), concerning Australia's policy of offshore processing and mandatory detention of asylum applicants under bilateral agreements with Nauru. These cases concerned claims of arbitrary detention, violations of family life, inhumane treatment, and the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR).
 
In Nabhari, the author, an Iranian national, was transferred to Nauru under Australia’s 2013 memorandum of understanding (MoU) with Nauru, which enabled the offshore processing of unauthorized maritime arrivals. After being recognized as a refugee, she remained in prolonged detention in Nauru and later in Australia for medical treatment, citing deteriorating physical and mental health due to detention conditions and family separation. In M.I. et al., 24 unaccompanied minors intercepted en route to Australia by sea were transferred to Nauru. They alleged cruel, inhuman, and degrading treatment due to conditions in the Nauru Regional Processing Centre (RPC), including inadequate shelter, extreme heat, limited privacy, and lack of adequate healthcare. The authors also asserted violations of their family and child rights, discriminatory treatment, and the impossibility of challenging their transfer or detention. The authors in both cases argued that Australia exercised effective control over their detention in Nauru and is therefore responsible for any actions resulting in human rights violations.
 
The examination focused inter alia on the extraterritorial applicability of the Covenant, the legality of mandatory detention, and the extent of Australia’s control over the Nauru RPC. Regarding the latter, the Committee determined that Australia's policies and its significant role in managing the Nauru RPC—through funding, contracts with service providers, and operational oversight—constituted effective control, rendering it responsible for these violations. The Committee rejected Australia's arguments that the Covenant did not apply extraterritorially, reiterating its established position that States parties must respect Covenant rights when they exercise power or effective control beyond their territory.
 
In addition, the Committee considered Articles 7 (prohibition of torture and ill-treatment), 9 (arbitrary detention), 10 (humane treatment of detainees), 17 (privacy and family life), 23 (family protection), and 24 (child rights). In Nabhari, the Committee found Australia responsible for violations of Articles 9 and 17 of the ICCPR due to the author’s prolonged and arbitrary detention and the impact on her mental health and family life. It emphasized that detention must be justified by individualized assessments and proportionality, and that alternatives must be considered. It concluded that Australia's mandatory detention policy violated the Covenant, given the lack of judicial oversight and the adverse effects of detention on family unity. In M.I. et al., the Committee held that the conditions in the Nauru Offshore Regional Processing Centre (RPC), including inadequate shelter, healthcare, and protection from harm, amounted to violations of Articles 7, 9, and 10 of the ICCPR. The detention of unaccompanied minors, without individualized assessments or adequate consideration of their best interests as children, further breached Articles 23 and 24.
 

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National Developments


France: CNDA grant refugee status to LGBTQ+ applicant from Sri Lanka


On 13 December 2024, the French National Court of Asylum (Cour nationale du droit d’asile, CNDA) ruled in the case M.K, n°24027654C.
 
The case concerned a Sri Lanka national applicant, M. K, who sought asylum in France, claiming fear of persecution in Sri Lanka due to his sexual orientation. He described a history of abuse, beginning in his adolescence. Following public disclosure of a same-sex relationship he was involved in, the applicant faced violence from his family, including confinement and physical abuse by his father, and severe mistreatment from his uncle. This abuse culminated in acts of sexual violence by a Sri Lankan parliamentarian, which the applicant attempted to document, resulting in threats and further violence. Fearing for his safety, the applicant fled Sri Lanka in February 2023. The French asylum authorities rejected the applicant’s asylum application on 26 April 2024, prompting him to appeal to the CNDA. Represented by counsel, M. K argued that his sexual orientation placed him at significant risk of persecution in Sri Lanka, where both the law and societal attitudes are hostile to LGBTQ+ individuals.
 
The CNDA examined the case under Article 1(A)(2) of the 1951 Geneva Convention, which defines refugees as individuals with a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion. The court considered whether LGBTQ+ individuals in Sri Lanka constitute a “particular social group” and whether the applicant faced a credible and ongoing risk of persecution if returned to his home country.
 
The CNDA emphasized that membership in a social group under the Geneva Convention arises from societal perceptions, not self-identification. It noted that LGBTQ+ individuals in Sri Lanka face widespread discrimination, criminalization under Penal Code Articles 365 and 365-A, and societal hostility. These provisions criminalize “unnatural offences” and acts of “gross indecency,” with punishments including imprisonment. Reports from Human Rights Watch, the U.S. State Department, and Freedom House highlighted the legal and societal challenges facing LGBTQ+ individuals in Sri Lanka, including harassment, violence, and limited access to legal recourse. The court found the applicant’s testimony credible, detailed, and consistent with documented conditions in Sri Lanka. His account of familial violence, societal rejection, and sexual abuse was deemed sufficiently substantiated. The court also concluded that the applicant’s fear of persecution remained well-founded, as he would face significant risks if returned to Sri Lanka, including physical harm, societal exclusion, and denial of effective state protection. The CNDA underlined that requiring LGBTQ+ individuals to conceal their sexual orientation to avoid persecution is incompatible with the Geneva Convention. The risk of persecution arises not only from direct state actions but also from societal attitudes and abuses tolerated or facilitated by state authorities.
 
The CNDA annulled OFPRA’s decision and granted the applicant refugee status. The CNDA ordered OFPRA to pay €1,200 to the applicant’s counsel for legal expenses, conditional on waiving additional state contributions.

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NGOs


GCR, HIAS, RSA and others: Publication of the Greek Asylum Case Law Report


On 8 January 2025, the Greek Council for Refugees (GCR), HIAS Greece and Refugee Support Aegean (RSA), with the contribution of METAdrasi, Equal Rights Beyond Borders, SolidarityNow, European Lawyers in Lesvos (ELIL) and Refugee Legal Support (RLS), as well as lawyers of the Legal Aid Registry of the Asylum Service, published a new issue of the Greek Asylum Case Law Report (available in Greek).
 
This report features excerpts from 84 decisions issued by administrative, civil, and criminal courts, as well as the Independent Appeals Committees and the Asylum Service, primarily during the second half of 2024. This edition addresses various topics, including the interpretation of the "safe third country" concept, evidence assessment, and refugee status determination. It also examines procedural safeguards in the asylum process, such as the assessment of the nationality of individuals seeking international protection, the functioning of administrative appeals, judicial protection for asylum applicants, and issues related to immigration detention.

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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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