Council of Europe
ECtHR: The prolonged detention of a family in the Röszke transit zone in Hungary breached Articles 3 and 5 of the ECHR
On the 12 th September 2024, the European Court of Human Rights (ECtHR) ruled in the case of Z.L. and Others v. Hungary (Application no. 13899/19).
The case concerned a mother and her three minor children and her adult child who sought asylum in Hungary after leaving Iran. They arrived on 10 December 2018, but their asylum claims were rejected on 11 February 2019, resulting in an expulsion order to Serbia, which was subsequently modified to Afghanistan when Serbia refused their readmission. Following a denied judicial review and inadequate food provisions in the Röszke transit zone, the family submitted a new asylum application on 16 May 2019, which was rejected on 8 October 2020. After the transit zone closed on 21 May 2020, they were transferred to an open facility and later settled in Vienna, Austria. The applicants complained under Article 3, 5 and 8 ECHR regarding the detention conditions, food deprivation, prolonged confinement, and inadequate medical care for one child.
The ECtHR first recalled its previous case law concerning the confinement and living conditions of asylum applicants and with respect to the confinement of children. Relying on its previous case law, the Court found that the third, fourth, and fifth applicants, aged 17, 15, and 13, respectively, faced a significant violation of Article 3 due to their prolonged, seventeen-month confinement in the Röszke transit zone. For the first and second applicants, the Court highlighted that they were denied food for a total of four days in the transit zone. The Government's claim that they could obtain food at their own expense was deemed insufficient. The Court, recalling its previous caselaw, found that the authorities failed to have due regard to the state of dependency in which the applicants lived during this period. The Court therefore found that Hungary violated Article 3 of the ECHR.
Regarding Article 5 ECHR, the Court referred to its previous case law finding that the applicants’ confinement in the transit zone during their asylum proceedings constituted a de facto deprivation of liberty. Given the excessive duration of the applicants' confinement (seventeen months), the Court concluded that their conditions met the threshold for deprivation of liberty under Article 5. In relation to the alien policing procedure, the Court noted that while the applicants were placed in the transit zone under provisions of the Immigration Act, these lacked adequate safeguards against arbitrariness. The absence of formal detention decisions, no limits on the duration of confinement, and insufficient judicial review mechanisms meant that the national law did not satisfy the "lawfulness" standard required by the ECHR. Consequently, the Court found violations of Article 5(1) and (4) in both contexts.
Back to top
ECtHR Communicated case: Compatibility of the living conditions of asylum applicants evicted from a reception centre in Italy with Article 3
On the 29th August 2024, the European Court of Human Rights (ECtHR) communicated the case of Abbas and Others v. Italy (Applications nos. 57842/22 and 4722/23). The case concerns the applicants’ living conditions following their temporary expulsion from the reception centre Gradisca d’Isonzo resulting from the order of eviction taken by the Prefecture of Gorizia. The applicants brought an action against the eviction order before the Regional Administrative Court which quashed this order. The applicants complain under Article 3 of the European Convention on Human Rights (ECHR), that, since their eviction from the reception centre and until relocation, they slept in makeshift beds or in abandoned buildings, had no regular access to food, hygienic services and adequate medical assistance.
The ECtHR asked the parties whether the applicants exhausted all effective domestic remedies, and whether their appeal before the Council of State was effective, as required by Article 35(1) of the ECHR. The ECtHR further asked the parties whether the applicants have been subjected to inhumane or degrading treatment, in breach of Article 3 of the ECHR.
Back to top
European Union
CJEU: Court rules that Articles 15(3) and 17 of the Family Reunification Directive allow Member States discretion on autonomous residence permits but mandate individual assessments for minors
On the 12th September 2024, the Court of Justice of the European Union (CJEU) ruled in case Sagario (Case C-63/23).
The case concerned a mother and her two minor children who held residence permits for family reunification, sponsored by the children's father. After applying for long-term residence permits on 22 April 2021, the national authority rejected the father's application due to a criminal record and subsequently denied the family's reunification applications, citing the father's lack of a valid work or residence permit. The Administrative Court in Barcelona, where the family appealed the decision, noted that the authority failed to assess the nature of their family relationships and personal circumstances, which could justify granting an autonomous residence permit under Directive 2003/86 (‘Family Reunification Directive’). The court then referred several questions to the CJEU regarding the interpretation of Article 15 (3) and Article 17 of the Directive, seeking clarification inter alia on the concept of "particularly difficult circumstances" as it pertains to minor applicants and whether national legislation that precludes autonomous residence permits in such situations is compatible with the directive.
The Court found that while Article 15(3) mandates that Member States (MS) ensure the issuance of permits in such situations, it does not define "particularly difficult circumstances." The Court found that this indicates that MS do not have unlimited discretion, as the provision establishes a right for family members that must be respected. Following its previous case law, the Court indicated that although MS can set conditions for issuing autonomous permits, they cannot undermine the Family Reunification Directive’s objectives or violate proportionality principles. The Directive aims to protect family unity and facilitate integration, especially in cases of domestic violence or widowhood, as outlined in Recitals 2, 4, and 6. Moreover, the CJEU emphasized that the mere presence of minor children or the loss of residence due to circumstances affecting the sponsor does not automatically justify an autonomous permit under the concept of "particularly difficult circumstances”.
The CJEU then reaffirmed that according to Article 17 of the Family Reunification Directive, MS must take due account of the nature and solidity of the family relationships, duration of residence in the host MS and the existence of family, cultural and social ties with the country of origin of an applicant when examining an application to renew the residence permit issued to a sponsor’s family member. The CJEU emphasised that the competent national authority is required to conduct an individual assessment that considers all relevant aspects of the family members’ situations, especially concerning children’s interests, as established in the previous case law. The CJEU reiterated that the refusal of a residence permit cannot be automatic and underlined that according to its caselaw, the right to be heard is a fundamental principle that guarantees affected individuals the opportunity to express their views before any decisions that could adversely impact their interests. This right extends to minor children, who must have their views considered based on their age and maturity as outlined in Article 24(1) of the EU Charter.
Finally, the CJEU ruled that the second sentence of Article 15(3) of the Family Reunification Directive does not prevent a MS from enacting legislation that does not require the competent national authority to grant an autonomous residence permit to a sponsor's family members, even if they have lost their residence permit for reasons beyond their control or if minor children are involved. The CJEU further concluded that Article 17 of the Family Reunification Directive precludes legislation of a MS which permits the competent national authority to refuse to renew a residence permit issued to a sponsor’s family members, without first conducting an individual assessment of their situation or hearing them. Where that decision concerns a minor child, MS must take all appropriate measures to offer that child a genuine and effective opportunity of being heard, in accordance with his or her age or degree of maturity.
Back to top
National Developments
Ireland: High Court ruled that the Irish State's failure to provide accommodation to international protection applicants violated their fundamental rights
On the 1st August 2024, the High Court of Ireland ruled in the case Irish Human Rights and Equality Commission v. Minister for Children, Equality, Disability, Integration and Youth & Ors, [2024] IEHC 493.
The case concerned the Irish State’s inability to provide direct accommodation and associated services to certain international protection applicants between late 2023 and May 2024. Since late 2023, the number of international protection applicants exceeded the available accommodation capacity. Consequently, the State adopted a policy of prioritising access to accommodation to certain categories of international applicants. As a result, many single male international protection applicants were not provided with accommodation by the State which instead provided increased daily expenses allowance and made provision for further ancillary services such as vouchers, information services, and increased assistance for day services.
The Irish Human Rights and Equality Commission (‘Commission’) exercised its right pursuant to section 41 of the Irish Human Rights and Equality Act (‘2014 Act’) to initiate proceedings before the High Court concerning the human rights of a class of persons, in the present case, the international protection applicants who sought protection in Ireland from 4 December 2023 and were not provided with accommodation or sufficient resources. The Commission argued that the State’s failure to provide for the basic needs, accommodation and financial assistance of newly arrived international protection applicants since in or around 4 December 2023 breached Articles 1, 3, 4 and 7 of the Charter of Fundamental Rights of the EU (‘EU Charter’), Articles 3 and 8 of the European Convention on Human Rights (ECHR) and Article 40.3 of the Constitution of Ireland. The Commission further argued that the State’s failure to provide accommodation, or in the alternative, financial assistance to newly arrived international protection applicants who were not accommodated since December 2023 breached the Directive 2013/33/EU (recast) (‘Reception Directive’).
After confirming the competence of the Commission to file judicial action over the rights of third parties, the High Court recalled that the international protection applicants have a well-established fundamental right to have their human dignity respected and protected, which includes providing them with an adequate standard of living which guarantees their subsistence and protects their physical and mental health where they do not have sufficient means to provide for themselves. The High Court ruled that the Irish state's failure to provide international protection applicants with accommodation violated their human rights, particularly the right to human dignity as outlined in Article 1 of the EU Charter. The High Court referenced the CJEU decision in Saciri and Others ( C-79/13), where a direct link was established between the Reception Conditions Directive’s requirements and the stipulations of Article 1 of the EU Charter. In this decision, the CJEU had emphasised that if the accommodation network for asylum applicants was overloaded, the basic need of applicants must be met, and those needs included what was necessary for a dignified standard of living. The High Court granted the Commission declaratory relief but rejected the mandatory orders requested. It found sufficient reasons to believe that the Irish State would uphold its obligations, noting that it had made significant efforts to improve conditions for unaccommodated international protection applicants following the High Court's rulings in 2023.
Back to top
France: CNDA grants refugee status to a Togolese and a Burkinabe who fear persecution on the grounds of homosexuality
In two decisions adopted on the 17th July 2024 (M.N., N° 24008057 and M.G. N° 24009761), the CNDA granted refugee status to a Togolese and a Burkinabé national on the grounds of the risks they faced in their country of origin on account of their belonging to a particular social group, within the meaning of Article 1(A)(2) of the 1951 Geneva Convention, characerised by their sexual orientation.
The first case concerned a Togolese national who submitted an international protection application in France based on his fear that, if he returned to his country of origin, he would be exposed to persecution on the grounds of his sexual orientation. On the basis of publicly available documentary sources, which describe the legal provisions prohibiting same-sex relations that are likely to be used against members of the LGBTI community in Togo, the arbitrary arrests and harassment to which LGBTI people are exposed by the police authorities and the societal discrimination to which they are subjected, the CNDA found that homosexual people in Togo constitute a particular social group within the meaning of the 1951 Geneva Convention and granted the applicant refugee status.
The second case concerned a Burkinabé national who submitted an international protection application in France based on his fear that, if he returned to his country of origin, he would be exposed to persecution or serious harm by his family and members of the Burkinabé society on the grounds of his sexual orientation without being able to avail himself of the protection of the national authorities. In reaching its decision, the CNDA relied on publicly available documentary sources, which highlight the stigmatisation, discrimination, social violence, ill-treatment and humiliation to which LGBTI people are routinely subjected in the country, including by members of the security forces. It also noted that, while homosexuality is not currently criminalised in Burkina Faso, a bill to prohibit and criminalise it, which meets the aspirations of influential segments of civil society, was adopted by the Council of Ministers on 10 July 2024.
Back to top
NGOs
RSA: Publication of 2024 official statistics showing persisting severe reception deficiencies in understaffed camps
According to RSA, the data, which pertain to all structures on the mainland and the East Aegean islands, indicate that a total of 18,412 people were residing in these structures on 30 June 2024. Notably, 18% of the residents (totaling 3,312 people) are living there without receiving material reception conditions such as food or financial assistance. According to the data, on 30 June 2024, out of 15,100 individuals eligible to financial assistance residing in camps, only 6,505 were receiving financial assistance, while 8,595 were not, resulting in a receipt rate of just 43%.
These data show that on 30 June 2024, minors represented 26% and women 34% of the population of refugee camps across Greece. With regard to vulnerable persons, RSA highlights that the data provided by the authorities dating from December 2023 do not allow to determine the number of vulnerable persons currently residing in refugee camps or whether their needs are being adequately met. With regard to the countries of origin of the residents of the refugee camps, the data shows that the residents mainly originate from countries in conflict, with Afghans and Syrians constituting the largest groups. Finally, the data highlights the lack of staff in the refugee camps, particularly the shortage or total absence of doctors.
Back to top
Hungarian Helsinki Committee: Webinar on ‘Access to Classified Data in National Security Related Immigration Cases’
The Hungarian Helsinki Committee (HHC) is organizing a webinar from 9 AM to 3 PM (CET) on 17 October 2024 on ‘Access to Classified Data in National Security Related Immigration Cases’ together with the European Council on Refugees and Exiles (ECRE) and the Polish Helsinki Foundation for Human Rights (HFHR). The webinar is funded by the European Philanthropic Initiative for Migration (EPIM).
The webinar will explore the following topics with a variety of invited guest speakers:
- Relevant jurisprudence of CJEU and ECtHR
- The Right to Know in the European Union (comparative study)
- Role of domestic courts in national security cases
- Access to classified data under the Pact and Law Enforcement Directive
Please find the detailed agenda with speakers and information on registration here. In case of interest, please register latest by 6 October 2024 and do not hesitate to share the event within your networks.
In case of any questions, please do not hesitate to reach out to us.
Back to top
Asylos: Commentary and Report on the situation of LGBTQI+ people in Georgia
This month, Asylos alongside Rainbow Migration published a Commentary on UK Home Office’s December 2023 Country Policy and Information Note: Sexual Orientation and Gender Identity and Expression, Georgia V1.0. The Commentary critiques the Country Policy and Information Note and provides country of origin information subsequent to December 2023. They additionally published a research report on the situation of LGBTQI people in Georgia. The report outlines the legal framework relevant to LGBTQI people in Georgia, the societal treatment and the access to protection available.
Back to top
ECRE
ELENA Course: Registration open for the Advanced 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.
Back to top
|