ELENA Weekly Legal Update

On 27 February 2025, the European Court of Human Rights (ECtHR) communicated the case of D.O. and L.A. v. Sweden (Application No. 30033/24), lodged on 10 October 2024. The case concerns the removal of two Syrian asylum applicants from Sweden to Greece. The applicants first applied for asylum in Greece where they lived in poor conditions, received no financial assistance and were allegedly denied medical care. After two years, they travel to Sweden, where their adult children live. The first applicant suffered from a severe cerebral hemorrhage requiring hospitalization and which resulted in aphasia and other disabilities. The applicants had lodged an asylum application in Sweden, unaware that they had been granted international protection in Greece and had received residence permit. The Swedish authorities rejected the applicants’ asylum requests and ordered their removal to Greece, on the grounds that they had obtained refugee status in Greece.

The ECtHR asked the parties whether the applicants would face a risk of being subjected to treatment in breach of Article 3 of the European Convention on Human Rights (ECHR) if they were removed to Greece, in particular regarding the living conditions and the access to medical care in Greece. Referring to the concept of “family life”, the ECtHR asked the parties whether the decision to remove the applicants entails a violation of the applicants’ rights under Article 8 ECHR.

ECtHR communicated case: Deportation of an Afghan national from Sweden to Afghanistan and risk of being subjected to treatment in breach of Articles 2 and 3 due to his ethnicity and westernisation

On 27 February 2025, the European Court of Human Rights (ECtHR) communicated the case of J.K. v. Sweden (Application no. 34931/24), lodged on 25 November 2024.

The case concerns an Afghan national who applied for asylum in Sweden, claiming that he faced a risk of persecution due to his Hazara ethnicity and his father’s previous work. The Swedish authorities rejected his request. He later lodged an application with the ECtHR, alleging that his deportation would violate Article 3 the European Convention on Human Rights (ECHR) and that there had been a violation of Article 6 ECHR. In February 2018, the Court declared his application inadmissible. The applicant submitted a new asylum request, reiterating his previous claims and arguing that the situation in Afghanistan had changed. He further contended that he was at risk due to his "westernisation." The Swedish authorities rejected this request, ordering his deportation. On 8 January 2025, the ECtHR granted the applicant’s request for an interim measure under Rule 39 of the Rules of Court, suspending his removal.

The ECtHR asked the parties whether the applicant’s deportation would expose him to a real risk of treatment in violation of Articles 2 and 3 ECHR, in particular due to his Hazara ethnicity and alleged "westernisation," in light of relevant country reports on Afghanistan. The ECtHR has also asked whether his removal would infringe his rights under Article 8 ECHR.

ECtHR: Communicated case concerning family reunification and the application of the maintenance requirement in Sweden

On 27 February 2025, the European Court of Human Rights (ECtHR) communicated the case of X and Others v. Sweden (Application no. 34685/23), lodged on 16 September 2023. The case concerns family reunification for Eritrean nationals. The first applicant was granted refugee status and a permanent residence permit in Sweden. The second and third applicants, his wife and their minor child, reside in Kenya. They applied for residence permits in Sweden for family reunification, but their request was refused on the grounds that they had not proven their identities, as they lacked Eritrean passports. The Migration Court of Appeal refused leave to appeal. Later, after acquiring passports, the second and third applicants reapplied for family reunification. Their applications were rejected on the ground that the first applicant did not meet the maintenance requirement introduced by new legislation. The Migration Court of Appeal refused leave to appeal. The applicants lodged a third application which was rejected on the same basis. The authorities found that the maintenance requirement was not disproportionate or contrary to Article 8 of the European Convention on Human Rights (ECHR), and that there were no exceptional circumstances warranting an exemption.

The ECtHR aske the parties whether the refusal to grant residence permits violated the applicants’ right to respect for family life under Article 8 ECHR, and whether the Swedish authorities struck a fair balance between the competing interests involved, within their margin of appreciation.

ECtHR: Communicated case concerning the living conditions of single mothers and their children in the Kos Closed Controlled Access Center

On 25 February 2025, the European Court of Human Rights (ECtHR) communicated the case of M.K. and Others v. Greece (Application no. 42416/23), lodged on 11 December 2023. The case concerns the living conditions of the applicants, two single mothers and their minor children, in the Closed Controlled Access Center (CCAC) of Kos. The applicants alleged that their conditions in the facility were incompatible with human dignity and that they lacked access to appropriate medical care.

The ECtHR asked the parties whether the applicants’ living conditions in the CCAC of Kos were compatible with Article 3 of the European Convention on Human Rights (ECHR), taking into account their status as single mothers with minor children and the alleged lack of medical care. The ECtHR has also asked whether the applicants had access to an effective remedy, as required under Article 13 ECHR, to challenge their living conditions.

ECtHR: Greece violated Article 2 of the ECHR due to the death of a minor during a coastguard operation and failures in the subsequent investigation

On 25 March 2025, the ECtHR ruled in the case of Almukhlas and Al-Maliki v. Greece (application no. 22776/18).

The case concerned the death of the applicants’ minor son, who was fatally shot during a Greek coastguard interception operation near the island of Symi on 29 August 2015. The child was hidden inside a vessel carrying irregular migrants when a Greek officer fired at a suspected smuggler, but the bullet struck and killed him. The applicants alleged violations of the right to life under Article 2 European Convention on Human Rights (ECHR).

First, the ECtHR recalled its previous case law establishing the general principles relating to the State’s procedural obligation under Article 2 ECHR to conduct an effective investigation into allegations of violation of the material aspect of that same provision in the context of resort to lethal force by State agents. The ECtHR noted that of the 93 passengers on the vessel, only 8 were invited to give evidence as witnesses, despite the request made in the complaint by the deceased's sister and her husband that all the passengers on the vessel be questioned as witnesses. The ECtHR then emphasized the need for the investigation to be independent in order for it to be considered effective. However, in the case in question, the ECtHR noted that the persons in charge of the investigation were colleagues of the coastguards involved in the incident in question. Finally, the ECtHR observed that the necessary investigative measures were not taken, which compromised the ability of the investigation to fully clarify the circumstances of the incident in question. The ECtHR therefore concluded that the Greek authorities failed to conduct an independent, thorough, and effective inquiry, which resulted in lost evidence and an inability to determine the exact circumstances of the child's death or establish accountability. These deficiencies amounted to a violation of the procedural aspect of Article 2 ECHR.

On the substantive aspect, the ECtHR observed that the Greek coastguard knew or should have known that the vessel carried migrants but failed to assess the likelihood of hidden passengers or take adequate precautions to minimize the risk to life in case of a violent incident given the potentially unpredictable nature of maritime surveillance operations. The authorities did not exercise the necessary caution, given that the use of force in this context - in a vessel full of passengers where panic prevailed - is exceptionally dangerous. The Court found that the operation lacked sufficient planning, risk assessment, and control over the use of firearms, leading to an avoidable loss of life. It therefore ruled that Greece had violated the substantive aspect of Article 2 ECHR in respect of the manner of conduct of the operation. In respect of the complaint under Article 2 ECHR on the use of force, the Court noted that, given the insufficient evidence to establish some of the facts beyond reasonable doubt, it had not been established that excessive force was used. Consequently, there has been no violation of Article 2 in this respect.

Based on an unofficial translation from within the EWLU team.

European Union

CJEU: Criteria for recognising refugee status and subsidiary protection clarified for blood feud situations

On 27 March 2025, the Court of Justice of the European Union (CJEU) ruled in the case of Budesamt für Fremdenwesen und Asyl v. A.N. (Laghman) (C-217/23).

The case concerned a preliminary ruling request from the Austrian Verwaltungsgerichtshof regarding the interpretation of Article 10(1)(d) and Article 15(a) and (b) of Directive 2011/95 (‘Qualification Directive’). The applicant, an Afghan national and an ethnic Pashtun from the Province of Lagham (Afghanistan), challenged the refusal of his application for international protection by the Austrian authorities. He claimed that he faced persecution on account of a blood feud targeting persons who were related to his father.

The CJEU clarified that persons may constitute a “particular social group” under Article 10(1)(d) of the Qualification Directive if two conditions are met. First, if they share an innate characteristic or common background that cannot be changed and second, if they are perceived by the surrounding society as being different. The Court found that the first condition relating to innate characteristic is met in the case of a boy or a man targeted by a blood feud on account of his targeted family. However, the Court found that the perception that a distinct group exists, of only a few individuals who are part of the surrounding society, cannot be decisive. In addition, it stated that the perception of their own difference by the victims of such acts cannot be decisive in that context. Thus, according to the Court, the fact that an applicant for international protection is exposed, in his or her country of origin, to a risk of physical violence extending to homicide as part of a blood feud targeting all or some of his or her family members as a result of a property dispute does not lead to the finding that that applicant belongs to a “particular social group” within the meaning of Article 10(1)(d) of the Qualification Directive. Therefore, the second criteria to qualify a particular social group in that case was not met. However, if an applicant is facing a risk of serious harm if returned to his or her country of origin, the Court indicated that it is for the competent national authority to assess whether this applicant is eligible for subsidiary protection under Article 2(f) of the Qualification Directive.

The Court of Justice of the EU issues its annual judicial statistics underlining increase in new cases and in cases completed in 2024

On 21 March, the Court of Justice of the EU published its judicial statistics for 2024. The judicial statistics of the Court for 2024 indicate an overall increase in both the number of cases brought before the Court of Justice and the number of cases completed compared to the previous year.

Notably, in the Area of Freedom, Security and Justice, 123 cases (including 117 preliminary references) were brought before the Court—40 more than in 2023. The publication also examines the origin of preliminary references, highlighting a significant rise in references from Italy, followed by Germany, Poland, Austria, Bulgaria, and Belgium. In terms of efficiency, the average processing time for preliminary references increased slightly from 16.8 months in 2023 to 17.2 months in 2024, while the duration of urgent preliminary ruling procedures saw a notable decrease from 4.3 months to 3.3 months. Additionally, the report provides an analysis of trends in cases involving direct actions and offers insights into the workload of the General Court.

United Nations

UNHCR: Publication of a toolkit on how to request interim measures under Rule 39 of the Rules of the ECtHR for persons in need of international protection

National Developments

Belgium: Labour Court of Brussels rules on reception rights of Palestinian applicant with prior international protection in Greece

On 13 March 2025, the Labour Court of Brussels ruled in case no. 2025/CB/2.

The case concerned a Palestinian national who had been granted international protection in Greece and subsequently submitted an international protection application in Belgium. Due to the ongoing reception crisis, he was not assigned a reception place. In December 2024, Fedasil decided to limit his right to material assistance to medical support only, arguing that he already benefited from protection in another EU Member State and should exercise his rights there. The applicant challenged this decision in summary proceedings before the president of the Labour Court of Brussels, who rejected his claim on the basis that he had voluntarily left Greece, where he could access social rights. The applicant appealed to the Labour Court.

The Labour Court found that the condition of urgency was met, holding that the applicant was in a situation of extreme material deprivation, without financial resources or housing, which constituted a serious risk of inhuman and degrading treatment. It rejected the argument that he was responsible for the urgency of his situation, ruling instead that Fedasil’s decision to exclude him from reception had created the hardship. The court emphasised that requiring the applicant to prove that he was effectively living on the street was unreasonable, given the well-documented inadequacy of emergency shelter in Belgium. It also noted that the applicant’s receipt of income support in Greece was irrelevant to the assessment of his right to reception in Belgium.

Regarding the classification of the applicant’s request for income support as a "subsequent application," the Labour Court rejected Fedasil’s reasoning. It found that while EU law does not prohibit Member States from designating such requests as "subsequent applications," Belgian law does not currently do so. The court pointed to distinctions in Belgian legislation between individuals who submit repeated requests in Belgium and those who do so after obtaining protection in another Member State. Additionally, the applicant had received an Appendix 26, rather than an Appendix 26d, and the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) had not issued an inadmissibility decision within the legally prescribed period. Based on these factors, the court ruled that the applicant’s case did not qualify as a "subsequent application" under Belgian law, and Fedasil could not rely on Article 4, §1, 3° of the Reception Act to restrict his material assistance.

The Labour Court further held that even if the applicant’s request had been considered a subsequent application, restrictions on reception must comply with the Reception Act and constitutional case law. It found that Fedasil’s decision was not individually reasoned, failed to consider the applicant’s specific circumstances, and did not ensure a dignified standard of living, particularly given the recognised vulnerability of Palestinian applicants. The court also ruled that the Belgian State could not invoke force majeure due to the reception crisis, citing EU case law confirming that saturation of the reception system does not justify derogation from minimum reception standards.

The Labour Court concluded that the applicant’s right to material assistance was established and that his receipt of income support in Greece did not justify restricting that right. It ordered Fedasil and the Belgian State, jointly and severally, to provide the applicant with material assistance as defined in the Reception Act, including appropriate accommodation or emergency shelter, under penalty of a fine of €100 per day of non-compliance, up to a maximum of €20,000.

Based on an unofficial translation from within the EWLU team. The EWLU team would like to thank the Vluchtelingenwerk Vlaanderen for bringing this case to our attention.

Greece: Council of State annulled the joint ministerial decision classifying of Türkiye as a safe third country

On 21 March 2025, the President of the Greek Council of State issued an announcement regarding the outcome of the plenary deliberations held on 27 February 2025 concerning cases discussed in the hearing of 7 February 2025. These cases related to the classification of Turkey as a safe third country for asylum applicants from Syria, Afghanistan, Pakistan, Bangladesh, and Somalia.

The Council of State ruled by majority that the joint ministerial decision no. 538595/12.12.2023 (available in Greek), which included Türkiye in the national list of safe third countries, was unlawful. The court found that the assessment did not properly evaluate the criteria set out in Article 91 of Law 4939/2022 (available in Greek), implementing Article 38 of Directive 2013/32/EU. It determined that the supporting documentation merely cited international sources without specifically assessing whether Türkiye met the required legal criteria for a safe third country. Consequently, the court annulled the ministerial decision insofar as it concerned the classification of Türkiye as a safe third country for asylum applicants from the aforementioned countries.

Furthermore, the court unanimously annulled individual decisions of the Independent Appeals Committees, which had rejected the international protection claims of the Afghan applicants on the basis that they had entered Greece from Türkiye, considered a safe third country. The court found that, since Türkiye had suspended the readmission of asylum seekers from Greece since March 2020, Greek authorities could not declare asylum applications inadmissible on this ground. This conclusion was based on the Court of Justice of the European Union (CJEU) judgment of 4 October 2024 in case C-134/23.

Based on an unofficial translation from within the EWLU team.

France: The National Asylum Court grants refugee status to a Guatemalan threatened for his sexual orientation

On 17 March 2025, the French National Asylum Court (CNDA) released its judgement in the case no. 095-03-01-02-03-05 C+.

The case concerned a Guatemalan national who applied for asylum in France, arguing that he feared persecution in Guatemala due to his sexual orientation. He described a history of discrimination and violence, including the murder of his former partner, threats and extortion in his home village, and a homophobic assault in Guatemala City. The applicant concealed his sexual orientation fearing persecutions. Fearing for his safety, he fled the country and arrived in France the following day. The French Office for the Protection of Refugees and Stateless Persons (OFPRA) rejected his asylum application on 23 October 2023, prompting him to appeal to the CNDA.

The CNDA considered whether LGBTI individuals in Guatemala constitute a “particular social group” and whether the applicant faced a credible and ongoing risk of persecution if returned to his home country. It found that LGBTI individuals in Guatemala are subject to widespread discrimination, violence, and social exclusion, noting reports from Human Rights Watch, Amnesty International, and national and international human rights organisations documenting increasing attacks against LGBTI persons, including targeted killings and systemic impunity. Although Guatemalan law does not criminalise homosexuality, the absence of legal protections, the lack of state mechanisms to combat discrimination, and the authorities’ failure to prevent or punish violence against LGBTI individuals create an environment of persecution.

The court further underlined that requiring LGBTI individuals to conceal their sexual orientation to avoid persecution is incompatible with the 1951 Geneva Convention. Assessing the applicant’s personal circumstances, the CNDA found his testimony credible, detailed, and consistent with country reports. His account of lifelong concealment of his sexual orientation, fear of societal rejection, experiences of violence, and eventual flight from Guatemala was deemed sufficiently substantiated. The court concluded that, due to his sexual orientation, the applicant had a well-founded fear of persecution in Guatemala and could not rely on state protection.

The CNDA annulled OFPRA’s decision and granted M. C. refugee status.

Based on an unofficial translation from within the EWLU team.

Summary

Council of Europe

ECtHR communicated case: Removal of two Syrian asylum applicants from Sweden to Greece and alleged risks of inhuman treatment