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ELENA Weekly Legal Update (EWLU)

6 September 2024
The EWLU will take a break and resume on 20 September 2024
 

Summary

 

 

European Union


CJEU: Opinion concerning particular social group in the context of blood feuds in Afghanistan

On the 5th September, Advocate General de la Tour delivered his Opinion in the case of C-217/23. The case concerned an Afghan national of Pashtun ethnicity who successfully obtained refugee status in Austria on appeal. The status was granted on the basis of the existence and seriousness of the risks faced on account of his family ties and a blood feud for land and the inability of the Afghan authorities to protect him from these risks. The decision-making authority appealed to the referring court which asked questions concerning clarifications on “distinct identity” and “different from the surrounding society” in terms of the “particular social group” criteria under Article 10(1)(d) Qualification Directive.

AG de La Tour firstly made reference to the first condition in Article 10(1)(d) and derived that members of a family involved in a blood feud in Afghanistan, particularly men and boys share an “innate characteristic” through their kinship and common background that can’t be changed, therefore satisfying the first condition for identifying a “particular social group”. He then clarified that the condition of “distinct identity” implies that the national authority is to assess the extent to which the surrounding society has an impression or image of the group which is associated with an opinion or judgment differentiating or distinguishing that group from the rest of society, which must be done by an individual assessment in light of all the information available to it.

AG de La Tour subsequently noted the referring court’s arguments that the applicant would not be treated differently by the surrounding society because only the “avenging” family would be aware and because blood feuds are common in Pashtunwali tradition. The Advocate General disagreed and noted that if this approach was adopted there would be a risk that applicants for international protection could not be recognised as members of a particular social group on the ground that the traditional code or practice they are subject to is widespread in their country of origin. AG de la Tour concluded that subject to an assessment of the facts and circumstances of each case, a competent authority could consider a member and particularly a male member of a family involved in a blood feud in their country of origin to belong to a group having a “distinct identity” in that country due to the rules they would be subject to under a customary code. AG de la Tour thereby concluded his Opinion that Article 10(1)(d) must be interpreted as meaning that depending on the country of origin circumstances, a member of a family involved in a blood feud may be considered to belong to a “particular social group”, as a reason for persecution that may lead to the recognition of refugee status.

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CJEU: Opinion concerning a third-country national's uninterrupted detention under the Dublin Regulation and Return Directive

On the 5th September 2024, AG Rantos delivered his Opinion in the case of C-387/24 PPU. The case concerned a Moroccan national who applied for asylum in the Netherlands on 1 May 2024 and was detained the next day under the Dublin III Regulation with the intention to transfer the applicant to Spain. The applicant withdrew his application for asylum and was subsequently subject to a return order to Morocco and a new detention measure under the Return Directive. The referring court asked in its question if Article 15(2)(b) of the Return Directive, Article 9(3) of the Reception Conditions Directive and Article 28(4) of the Dublin III Regulation read with Articles 6 and 47 of the Charter of Fundamental Rights of the EU (The Charter) are to be interpreted that a judicial authority is always required to immediately release a person in detention if that detention has become unlawful at any time during the uninterrupted execution of successive detention measures.

AG Rantos observed that in practice, Member States are often faced with the situation where a third-country national placed in detention under the Return Directive lodges an application for asylum which requires the continuation of the detention but under the Reception Conditions Directive. He furthermore noted that according to the wording of the relevant provisions, the obligation of “immediate release” falls to the judicial authorities and that none of the provisions provide for a maximum period before “immediate release”. The AG recalled that the Court has acknowledged that the objective of the Return Directive to effectively return illegally staying third-country nationals would be undermined if a Member State could not detain a person suspected of illegal residence to prevent their absconding before their situation is clarified. He continued that, while authorities must have a short but reasonable period of time to assess the situation of the person and the legality of their stay, they must also act diligently and take a position on this matter without delay.

Finally, AG Rantos considered the right to compensation and clarified that a failure to comply with the release period cannot give rise to additional days outside the detention centre, especially when the detention has ended and therefore the person concerned is never able to recover the days spent unlawfully in detention and compensation is generally provided. He continued that the duty of diligence requires the administration not to systematically resort to late releases accompanied by compensation and referred to the objective of Article 6 of the Charter which aims to protect an individual against arbitrariness.

AG Rantos therefore concluded that a judicial authority is not required to immediately release a third-country national from detention on the sole ground that another detention, in which the third-country national had previously and uninterruptedly been placed under the Dublin Regulation, no longer meets the conditions of legality as the third-country national was not released immediately after it was established that the prior detention was no longer justified in accordance with the Reception Conditions Directive.

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FRA: Guidance on investigating alleged ill-treatment at borders

On the 30th July 2024, the Fundamental Rights Agency of the EU (FRA) published its guidance on investigating alleged ill-treatment at borders. The report gathers examples of rights violations of migrants and refugees between 2020 and 2023 and sets out steps to promote effective national investigations into incidents of ill-treatment at borders. The guidance outlines the requirements under Article 47 of the Charter of Fundamental Rights of the EU and the responsibility of Member States to investigate rights violations.

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EUAA: Role of national human rights institutions and ombudspersons

On the 30th August 2024, the EU Agency for Asylum (EUAA) published its report on the role of national human rights institutions and ombudspersons. The report presents the role and activities of these institutions in the field of international protection for each EU Member State.

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United Nations


CCPR: Committee finds case against Sweden inadmissible concerning deportation of Ahmadi Pakistani applicants


On the 19th July 2024, the Human Rights Committee (the Committee) delivered its decision in a case concerning a deportation from Sweden to Pakistan. The case concerned two sisters who are nationals of Pakistan and Ahmadi Muslims. The authors arrived in Sweden on student visas and later unsuccessfully applied for asylum. They submitted that if deported to Pakistan they would be subjected to persecution due to their Ahmadi religion.

On analysis of the admissibility of the communication, the Committee firstly declared that the authors’ claim under Article 18 of the Covenant was inadmissible as it was not included in the original communication but it was only invoked after the State party observations. The Committee further found relevant that one of the authors had stated that she was not aware she could apply for asylum while her student visa was valid despite having family members who had applied for asylum while holding visas and the other author had noted in her application for the visa that she intended to return to Pakistan after her studies in Sweden. It considered that these circumstances alongside the absence of details about the incidents in Pakistan undermined their claim. Moreover, the Court noted that the attacks on the authors’ family members mostly occurred in the relatively distant past and there was a discrepancy in some dates cited between the two authors. 

The Committee concluded that it was concerned by credible reports as to the widespread human rights violations against Ahmadi Muslims in Pakistan, however in light of the above reasons and the lack of detail and credibility of some of the authors’ claims, it considered that the authors did not sufficiently substantiate their claim that if they returned to Pakistan they would be personally exposed to a risk of being tortured or subjected to ill-treatment and thereby held their claim inadmissible.

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National Developments


Austria: Administrative Court decides on the protection granted for a Palestinian applicant from Syria


On the 2nd August 2024, the Federal Administrative Court gave its decision concerning a stateless Palestinian applicant from Syria. The Federal Administrative Court considered the general situation in Syria, including the Syrian regime and opposition groups, military service and conscription issues, risks for ethnic and religious minorities, particularly the Sunni Arab population, and the situation for and legal status of Palestinian refugees.

The Court found relevant that the applicant stated in the hearing and not the initial interview that he left Syria because he had been asked to join the Syrian regime. It considered that his diverging statements about forced recruitment, the fact that he was undisturbed by the militias and the fact that he was the only son of his parents, and therefore could be exempt from military service, suggested that he was unable to substantiate and credibly demonstrate an individual fear of persecution.

However, the Court subsequently considered Article 1 (D) of the Refugee Convention and found that due to the security situation in Syria and the real danger under Articles 2 and 3 of the ECHR if he returned, there are objective reasons to suggest that the applicant falls within the scope of the second sentence of this provision. It concluded that although the applicant was granted assistance by UNRWA in the past, the assistance is no longer available for reasons beyond his control and he is not entitled to benefits in any other UNRWA area of operation. 

Based on an unofficial translation from within the EWLU team.

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NGOs


Human Rights Watch: Sexual violence against women and girls in Sudan’s capital


On the 28th July 2024, Human Rights Watch released its report entitled ““Khartoum is not safe for women!” Sexual Violence against Women and Girls in Sudan’s Capital.” The report documents widespread conflict-related sexual violence in Khartoum and Bahri and Omdurman since the recent conflict. It outlines the instances of sexual violence as well as its impact on survivors and the services available to victims and survivors. The report provides recommendations to the warring parties, the relevant UN bodies and to other States and regional organisations.

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ECRE


ELENA Course: Registrations open for the ELENA Course 2024


Registrations remain open for this year’s Advanced ELENA Course 2024, taking place 22-23 November 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. Please consult the draft agenda and registration page for more information and tickets.

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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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