Council of Europe
ECtHR: D.H. and others v. Sweden
On 25 July 2024, the European Court of Human Rights (ECtHR) delivered its judgment in D.H. and others v. Sweden (Application no. 34210/19).The case concerned an Eritrean woman who was granted asylum in Sweden in 2015 but whose request for family reunification with her two children and mother was denied. The applicants complained under Article 8 alone and in conjunction with Article 14 of the Convention on the grounds that Sweden's refusal to grant family reunification violated their rights and the maintenance requirement disproportionately affected the first applicant due to her inability to work because of her disability.
The Court firstly considered the claims under Article 8 and noted that the first applicant could have applied for family reunification without the maintenance requirement during a seven-month window, but she did not. Moreover, it noted that while her disability affected her mobility, it had not been shown that she was incapable of working or had done all reasonably expected to earn sufficient income. The Court also observed that while there are strong ties between the children, their mother and their grandmother, the family could maintain contact and the first applicant could visit them in Sudan. It noted that the applicants could lodge a new request for family reunification at any time. The Court therefore concluded that the domestic authorities struck a fair balance between the interests of the applicants and the State and did not overstep the margin of appreciation afforded to them when refusing the family reunification request.
Regarding Article 14, the Court noted that the first applicant had not demonstrated that her disability entirely prevented her from working or that she had been treated differently because of her reduced mobility or incapacity to perform certain types of jobs. The Court observed that Swedish authorities had provided support for the applicant's employment efforts, including language courses and mobility assistance, and had considered her individual circumstances under relevant national law. The Court thereby held the claims under Article 14 as manifestly ill-founded and rejected them accordingly.
Back to top
ECtHR: Okubamichael Debru v. Sweden
On 25 July 2024, the European Court of Human Rights (ECtHR) delivered its judgment in Okubamichael Debru v. Sweden (Application no. 49755/18). This case concerned an Ethiopian national, who contested the refusal of Swedish authorities to grant family reunification with his wife and two children. The applicant was recognised as a refugee in South Sudan in June 2017 and was resettled to Sweden in September 2017. In October 2017, the applicant applied for family reunification with his wife and children, who were living in Uganda as asylum seekers. The application was denied because it exceeded the three-month exemption period, and the applicant did not meet the maintenance requirement due to insufficient income and inadequate housing. The applicant argued that the delay was due to not having a personal identity number and his lack of knowledge of Swedish law. He argued that this decision violated his rights under Article 8 and Article 14 of the Convention.
In the Court’s examination of Article 8, it noted that while states have a wide margin of appreciation in regulating immigration and setting maintenance requirements, this must be balanced against the individual's rights. The Court highlighted the applicant’s age, health issues, and the long separation from his family and considered the fact that the applicant's family had been living in Uganda under the protection of the UNHCR and had maintained contact with him. The children were aged 13 and 7 at the time of the application, and there was no indication of special dependency on the applicant that would make their separation particularly harmful. Ultimately, the Court concluded that Swedish authorities struck a fair balance between the applicant’s interest in being reunited with his family and the State’s interest in controlling immigration. The Court also dismissed the applicant's claim of discrimination based on age and health under Article 14, declaring that part of the application was inadmissible.
Back to top
Commissioner for Human Rights: Letters to the Prime Minister of Poland and the Marshal of the Senate of Poland concerning the human rights situation on the border with Belarus
The Council of Europe Commissioner for Human Rights, Michael O’Flaherty, published two letters on 17 July 2024, addressed to the Prime Minister and the Marshal of the Senate of Poland. The letters express concerns regarding the human rights situation at the Polish-Belarusian border. The Commissioner expressed concern about the ongoing practice of summary returns of individuals across the Polish-Belarusian border, which contradicts Poland's international human rights obligations. Additionally, he highlighted the human rights implications of the buffer zone established at part of the border. The Commissioner addressed the bill proposing to exempt state agents in border areas from criminal liability under certain urgent conditions for using direct force or firearms in violation of existing rules and expressed concern that it could create a framework discouraging adherence to proportionality in the use of force and firearms, reducing public scrutiny, and potentially fostering a lack of accountability and commitment to human rights obligations.
Back to top
European Union
CJEU: Judgment on social assistance eligibility requirements for long-term residents
On July 29, 2024, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its decision in the joint cases C-112/22 and C-223/22. The cases involved two long-term residents of Italy, who applied for citizenship income, a form of social assistance intended to guarantee a minimum standard of living, and were accused of making false declarations regarding their residence status. The Italian law in question required that applicants must have resided in Italy for at least ten years, the last two years of which must have been consecutive. The Tribunale di Napoli (District Court of Naples) referred the matter to the CJEU, questioning whether such a residency requirement was consistent with EU law.
First, the Court noted that, despite the objection of the Italian government, it must consider that the benefit in question is a measure covered by Article 11(1)(d) of Directive 2003/109 because it is required to consider the factual and legal context that the referring court set out in its preliminary request. On that basis, it went on to examine the measure in light of that Directive and Article 34 of the Charter of Fundamental Rights of the EU. According to recitals 2, 4, 6, and 12 of the Directive, its objective is the integration of long-term residents by establishing equal treatment with EU citizens in a wide range of economic and social fields. In line with the Advocate General’s Opinion, that status corresponds to the highest level of integration.
Consequently, the CJEU sought to clarify whether the residence requirement for the citizenship income constituted indirect discrimination against third-country nationals who are long-term residents, in violation of the directive. The CJEU found that the ten-year residency requirement, including the last two years continuously, constituted indirect discrimination against third-country nationals as it disproportionately disadvantaged non-nationals. The list of situations of derogation from equal treatment in the Directive is exhaustive; therefore, differential treatment that does not fall under any of the cases foreseen by the Directive is in itself a violation of Article 11(1)(d). The Court emphasized that while Member States may impose certain residence conditions for granting long-term resident status, they cannot impose additional residency conditions for accessing social assistance benefits. Additionally, the Court further ruled that according to its case law, criminal penalties for false declarations related to this residence requirement could not be justified since the requirement itself was deemed incompatible with EU law.
Based on an unofficial translation from within the EWLU team.
Back to top
EUAA: 2024 Country Focus Reports on Nigeria and Bangladesh, and Fact Sheet on LGBTIQ applicants in asylum systems
This week, the European Union Agency for Asylum (EUAA) published its 2024 Country Focus reports on Nigeria (July 12) and Bangladesh (July 11), as well as a Fact Sheet on LGBTIQ applicants in asylum systems (June 28). The report on Bangladesh captures the main issues relevant to international protection, including a description of the functionality of the justice and security sector and the situation of select groups and profiles of interest. The report on Nigeria provides an overview of the situation in Nigeria in the period 1 January 2023 – 31 March 2024, with a description of security trends and of the nature of the incidents, particularly those having impact on civilians. The report addresses some of the main profiles relevant for Nigeria, such as the situation of victims of trafficking, women and girls, and LGBTIQ people. The Fact Sheet on LGBTIQ applicants highlights the specific challenges faced by individuals from this community within asylum systems and offers insight into guidelines to ensure their protection and fair treatment.
Back to top
National Developments
France: CNDA grants protection to a Sudanese national from South Kordofan on the grounds of indiscriminate violence of an exceptional level
On July 17, 2024, the National Court of Asylum (CNDA) delivered its decision concerning a Sudanese national’s appeal against the decision of the French Office for the Protection of Refugees and Stateless Persons (OFPRA), which denied his asylum application. The applicant from South Kordofan sought international protection on the grounds that he faced persecution and a serious threat of harm if returned to Sudan due to his political opinions and the prevailing security situation in his region.
The Court considered the credibility and consistency of the statements regarding the applicant’s nationality, origin, and ethnicity. While his assertions about his involvement with the rebels and the circumstances of his arrest and detention were found lacking in specific details, the Court acknowledged the broader context of general indiscriminate violence and ethnic conflict in South Kordofan. It emphasised that the level of violence in the region was high enough to pose a serious risk to any civilian.
The Court concluded that the applicant could not safely return to Sudan without facing a real risk of serious harm. As such, while the request for refugee status was denied due to insufficient evidence of targeted persecution based on political opinion, subsidiary protection was granted due to the significant threat posed by the indiscriminate violence in his home region.
Based on an unofficial translation from within the EWLU team.
Back to top
Italy: Court suspends asylum rejection on the basis that Egypt may not be a safe country of origin
On July 19, 2024, the Tribunale di Napoli (District Court of Naples) issued a ruling regarding the enforceability of a rejection of an international protection application by an Egyptian national.
The applicant had sought protection due to his refusal to partake in military service and the potentially severe penalties he might face upon returning to Egypt. The application was initially deemed manifestly unfounded because Egypt is listed as a "safe country of origin" in a Ministerial Decree. However, the applicant contested this decision, arguing that his refusal to serve in the Egyptian military and his fear of punitive consequences should exempt Egypt from being considered safe in his particular case.
The Court reviewed the case and found serious reasons to suspend the enforceability of the rejection. It emphasised the necessity of further investigation into the applicant's claims, particularly regarding the lack of recognition for conscientious objection and the punishment for military deserters in Egypt. The Court therefore concluded that there were sufficient grounds to suspend the enforceability of the contested measure pending further examination of the case.
Based on an unofficial translation from within the EWLU team.
Back to top
NGOs
Mobile Info Team: Voices from the Camps- Living conditions and access to services in refugee camps on the Greek mainland
This week, Mobile Info Team published its 2024 Report on Living Conditions and Access to Services in Refugee Camps on the Greek Mainland. The report provides an examination of the current living conditions and access to essential services for refugees residing in camps across the Greek mainland. It highlights the challenges faced by residents in areas such as housing, healthcare, food security, and legal assistance, offering first-hand accounts from those living in the camps. The report also notes ongoing issues with overcrowding, insufficient healthcare services, and barriers to accessing legal support.
Back to top
ECRE
AIDA: Country Reports 2023 on Türkiye, Romania, Serbia and Hungary
AIDA published its 2023 reports on Türkiye, Romania, Serbia and Hungary, updating the 2022 reports and providing an overview of the legislative and practice-related developments in the asylum procedure, reception conditions, detention and content of international protection. AIDA additonally published an annex on temporary protection for Romania, Serbia and Hungary.
Back to top
ELENA: Advanced ELENA Course 2024
Registrations are now open for the Advanced ELENA Course 2024! The course will take place on the 22-23 November 2024 in Porto, Portugal. The course provides an opportunity for practitioners and anyone working in the field of migration and refugee law to hear from speakers from the European Court of Human Rights, the Court of Justice of the EU and the UN Treaty Bodies and to share experiences and discuss detention, the Pact on Migration and Asylum and national security. Consult the event registration page or draft agenda for more information.
Back to top
Many thanks to Valentina Accorsi who supported us with the drafting on this ELENA Weekly Legal Update.
Back to top
|