ELENA weekly legal update – 11 July 2014

Mailing or Enclosure | Family and Personal Migration

European Court of Human Rights

Mugenzi v. France (no. 52701/09), Tanda-Muzinga v. France (no. 2260/10), Senigo Longue and Others v. France (no. 19113/09), Ly v. France (no. 23851/10) [Article 8], 10 July 2014

In three separate judgments, the European Court of Human Rights (ECtHR) has unanimously declared the French family reunification procedure to be incompatible with the right to family life under Article 8 ECHR. Two of the cases concern the attempts by recognised refugees to bring their children to France (in one of these cases, reunification has now been granted). The third case is about the obstacles faced by the wife of a French national to be reunited with her children (following the complaint to the ECtHR, visas were granted to the children and the wife obtained French nationality). In a fourth case, not summarised here, the ECtHR has issued a decision declaring manifestly ill-founded the complaint of a Mauritanian national concerning his failure to bring his alleged daughter to France.

According to the ECtHR press release, in all three judgments, the ECtHR concluded that, ‘since the national authorities had not given due consideration to the applicants’ specific circumstances, … the family reunification procedure had not offered the requisite guarantees of flexibility, promptness and effectiveness to ensure compliance with their right to respect for their family life. For that reason, the State had not struck a fair balance between the applicants’ interests on the one hand, and its own interest in controlling immigration on the other, in violation of Article 8’.

Mugenzi v. France & Tanda-Muzinga v. France: refugee cases

Mr Mugenzi and Mr Tanda-Muzinga are nationals of Rwanda and the Congo respectively, obtained refugee status in France, and applied for family reunification in 2003 and 2007 with their children in Kenya and Cameroon respectively.

Mr Mugenzi

The French consular authorities in Nairobi declared Mr Mugenzi’s children to be too old for reunification, on the basis of an age assessment by mouth cavity examination, which purportedly revealed a discrepancy between the children’s physiological age and their birth certificates. After receiving another refusal decision on the same grounds, Mr Mugenzi’s applied in April 2007 to the Conseil d’État. On the basis that his children were unaccompanied and one of his sons was suffering from health problems as a result of the trauma experienced in Rwanda, he requested his application to be dealt with urgently in January 2008. In the following month, the Conseil d’État refused the urgency request, due to the children either being, or soon to be, adults. In March 2009, the Conseil d’État gave judgment on the merits against the applicant.

The ECtHR in this case noted that it was a summary medical examination which proved decisive in evaluating the doubtful authenticity of the birth certificates submitted in the visa applications by Mr Mugenzi and his children. In addition, Mr Mugenzi had referred to his children in his asylum application, and his family composition was verified by the French asylum authorities. Finally, it took 5 years for Mr Mugenzi to get a final decision on his family reunification application, a period regarded by the ECtHR as excessive especially given the risks attached to his children’s circumstances.

Mr Tanda-Muzinga

Neither the consular authorities nor the Appeals Board responded to Mr Tanda-Muzinga’s application for visas and subsequent appeal. Following his urgent application to the Conseil d’État in June 2008, he learnt that the authorities contested the authenticity of his children’s birth certificates. Around the same time, the French asylum authorities confirmed his family situation to the visa authorities. The Conseil d’État rejected the appeal against all refused visas, on the basis that at least one of the documents was fraudulent. Mr Tanda-Muzinga’s second application for reunification was rejected without explanation in April 2010, and the Appeals Board again did not respond to his appeal. After the complaint was communicated to the ECtHR, proof of authenticity of the children’s birth certificates became available, which prompted the consular authorities to issue visas to the children.

According to the press release, the ECtHR in this case ‘noted that it had been impossible for the applicant to understand what exactly were the objections to his plans for family reunification, since no explanations or reasons were provided at the early stages’. As with Mr Mugenzi, the ECtHR criticised the French visa authorities’ refusal to consider the certification of family composition by the French asylum authorities. Lastly, a final decision in Mr Tanda-Muzinga’s case took three and a half years, likewise judged to be excessive in the circumstances.

Senigo Longue and Others v. France: wife of French national

Ms Senigo Longue, after submitting her family reunification request in May 2007, had her children’s birth certificates re-issued, claiming she’d lost the originals. The French consular authorities in Cameroon rejected the re-issued certificates as inauthentic. The Appeals Board did not reply to her appeal. She returned to Cameroon where a DNA test confirmed her to almost certainly be the mother. The Conseil d’État dismissed her submitted documents as forgery. After she complained to the ECtHR, visas were issued in July 2010.

Given the stark choice faced by the applicant between abandoning her status in France or accepting separation from her children, the ECtHR noted the importance of rapid and diligent attention to her family reunification request. The Appeal Board’s non-response, and the Conseil d’État’s failure to notify the applicant which of the documents it considered to be forged, led the ECtHR to conclude that it had been difficult for the applicant to understand the objections to her application. In addition, the ECtHR highlighted that the applicant’s effective participation was hindered by the Conseil d’État issuing their decision prior to receiving the applicant’s statement of appeal, which recorded the new DNA test results. Finally, the three year delay was regarded as unacceptable.

Read the judgments and decision of the European Court of Human Rights in Mugenzi v. France (no. 52701/09)Tanda-Muzinga v. France (no. 2260/10)Senigo Longue and Others v. France (no. 19113/09), and Ly v. France (no. 23851/10) (all in French only). Read also the ECtHR’s press release on all four cases.

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M.E. v. Denmark (no. 58363/10) [Articles 3 and 8], 8 July 2014

The European Court of Human Rights has ruled that Denmark could not have known that the expulsion of a stateless Palestinian to Syria in November 2010 for drugs offences would result in his detention and torture. Accordingly, Denmark did not violate the applicant’s rights under Article 3 (prohibition of inhuman or degrading treatment).

The applicant was born in Syria, entered Denmark when he was 7 years old, and was granted asylum three years later in 1993. He has two children from previous marriages in Denmark and, in 2006, was convicted of 26 drug-related offences and sentenced to seven years in prison. Taking this conviction together with previous convictions for assault, human trafficking and theft, the Danish authorities ordered his expulsion, appeals against which were rejected. Once expelled to Syria in November 2010, the Danish government accept he was detained and tortured. Under Article 3, the applicant complained to the ECtHR that the authorities ought to have known that he was at such risk on account of his drug-related conviction. The applicant also complained that, by separating him from his children and new wife, his right to family life under Article 8 was violated. The applicant was released from detention in Syria in December 2010, fled to Sweden in 2011 and was granted asylum there in 2013.

The ECtHR first noted the common ground between the parties: at the time of expulsion, the Syrian conflict had not yet begun, and the general situation was not such that any removal would per se constitute an Article 3 violation. Turning to individual circumstances, the ECtHR highlighted that even the applicant did not rely on Article 3 until December 2010, after he had been expelled. Therefore, at the time of expulsion, the ECtHR infers that the applicant did not believe his removal entailed risk of ill-treatment. In addition, in ordering expulsion, the Danish High Court considered the risk of double jeopardy, but relied on expert opinion that drugs offences are not among the types of criminal activity that might attract double punishment by the Syrian authorities. Furthermore, the applicant did not at any time file information attesting to such risk. The ECtHR therefore concludes that there was no reason why the Danish authorities should have been aware of this persecution risk.

In addition, the applicant did not belong to a category of people regarded by international reports to be at risk of persecution at the relevant time: he could not be regarded as a political opponent of the government, or as a member of a threatened minority. The ECtHR finally rejected claims that the applicant risked reprisals for failing to report for military service in Syria, and that the applicant was vicariously at risk through his father (who had, in the same month, also returned to Syria) by virtue of his political past.

Read the judgment of the European Court of Human Rights.

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Referral to Grand Chamber: S.J. v. Belgium (no. 70055/10)

S.J. v. Belgium (no. 70055/10), referred at the request of both the applicant and the Belgian government, has been accepted for consideration by the Grand Chamber of the European Court of Human Rights. The judgment (summarised in Weekly Legal Update 28 February 2014) concerns the proposed return of a mother with HIV and her three children to Nigeria.

The ECtHR ruled that Article 13 (right to an effective remedy) ECHR had been violated on account of the family’s lack of opportunity to effectively challenge their expulsion under Belgian law. However, concerning the alleged unavailability of the necessary medical treatment for the mother’s HIV, the ECtHR ruled that Article 3 (prohibition of ill-treatment) would not be violated by the execution of the removal order. Notwithstanding the acknowledged absence of free treatment against AIDs for a majority of people in Nigeria, and her three dependent children who will witness her deterioration, a majority of the ECtHR concluded that the mother is not in a ‘critical condition’ sufficient to meet the exceptional test for resisting removal on medical grounds.

Read the Grand Chamber referral press release and the original judgment (French only).

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European Union

Court of Justice: Upcoming judgments and AG opinions, Thursday 17 July

On Thursday 17 July 2014, the CJEU will release judgment in the following cases:

– Case C-481/13 Qurbani (on interpreting Article 31 of the 1951 Refugee Convention – penalising irregular entry)

– Joined cases C-473/13 & C-514/13 Bero & Bouzalmate and case C-474/13 Pham (detention pending removal in ordinary prisons, and relevance of consent)

– Joined cases C-141/12 & C-372/12 Y.S & M and S (whether a document containing legal analysis in the form of internal advice on whether to grant residence status constitutes personal data thereby generating a right of access)

In addition, Advocate General Opinions will be published for the following cases:

– Case C-542/13 M’Boj (access to social welfare and health care for those permitted to stay in host country on medical grounds)

– Joined cases C-148/13 C-149/13 C-150/13 A, B, C (credibility assessment in sexual orientation cases)

Read the full CJEU judicial calendar.

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United Nations

UNHCR: Handbook on Protection of Stateless Persons

UNHCR has published its Handbook on Protection of Stateless Persons, which supersedes the previous 2012 Guidelines concerned with the definition of a stateless person, procedures for determining statelessness and the status of stateless persons under national law. The aim of the handbook is to provide government officials, judges and practitioners, as well as UNHCR staff and other actors involved in addressing statelessness with a resource for statelessness determination and the development and implementation of law and policies relating to the protection of stateless persons.

UNHCR has also launched its first public online course on statelessness.

Read the UNHCR Handbook.

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National Developments

Portugal: Adoption of new asylum legislation transposing EU asylum directives

Following amendments to the draft bill, a new asylum law entered into forced last week in Portugal, in order to transpose the Qualification DirectiveAsylum Procedures Directive and the Reception Conditions Directive.

draft law backed by the Portuguese Parliament earlier this year, was discussed by the Parliament’s Commission on Constitutional Affairs, Rights and Liberties and modified after concern was raised by the Portuguese Refugee Council (CPR), UNHCR and Amnesty International Portugal regarding some of its provisions. CPR and UNHCR have welcomed some of the changes. For instance, contrary to the proposed law, the second appeal against a negative asylum decision will continue to have suspensive effect for all asylum seekers, including those who claim asylum at the border and for asylum seekers who appeal against a decision of being sent back to another Member State under the Dublin Regulation. Therefore, asylum seekers will have the right to stay in the country pending their appeal proceedings.

In relation to the previous law, the number of days for appealing a negative asylum decision has increased from 2 to 4 days and the admissibility phase regarding asylum requests at the border – the time allocated to the authorities to decide if people can have their asylum application examined – has increased from 5 to 7 days.

With regards to detention, CPR stresses that even though the general rule is not to detain asylum seekers, the law has significantly increased the situations in which an applicant for international protection may be placed or kept in detention. According to the new law applicants, including those under Dublin proceedings, may only be placed or kept in a detention centre “for reasons of national security, public health or where there is risk of absconding”.

CPR will continue to have the right to be informed when a person claims asylum in the country and will be able to contact the asylum seekers in order to provide information and legal advice. Since 2008, CPR has been providing direct support to 90% of the people who claim asylum in the country, providing information about the procedure and helping in matters related to integration. 

Read Portugal’s new asylum law (Portuguese only).

The Weekly Legal Update would like to thank Mónica Farinha, the Portuguese ELENA coordinator, for informing ECRE about this development.

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Norway: Revised guidelines on prosecuting illegal entry, suspension of forced removals to parts of Iraq, and temporary block to Dublin return of family to Italy

Article 31 of the 1951 Refugee Convention and revised guidelines on prosecuting illegal entry

‘Without undue delay’

An amendment to the guidelines issued by the Norwegian Director of Public Prosecutions orders police to cease their practice of criminalising asylum seekers who do not ‘immediately’ admit they have used false identity papers. The revised guidelines protect asylum seekers from prosecution if ‘without undue delay’ they admit to using false documents to enter the territory.

The amendment is the government’s response to a ruling of the Norwegian Supreme Court that the previous policy was incompatible with the 1951 Refugee Convention, Article 31 of which prohibits Contracting States from penalising refugees for entry or presence without authorisation if they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

On 24 June 2014 the Supreme Court ruled that the former guidelines were interpreting Article 31 too restrictively by translating ‘without delay’ into ‘straks’, which is Norwegian for ‘immediately’. Such a narrow interpretation meant that even those who claimed asylum on arrival at the airport were not exempted from prosecution. The new guidelines now use the more accurate translation ‘uten ugrunnet opphold’ (without undue delay), as recommended by the Supreme Court. If asylum is sought at the airport on the day of arrival, then the guidelines say this ‘obviously’ prohibits prosecution for illegal entry, although this does not mark the maximum allowed time period.

The Norwegian word ‘ugrunnet’ can literally be translated as ‘without cause’, and is basically a negation of the Convention’s term ‘good cause’. The addition of this word requires that, in each individual case of delay, the police must consider circumstances of the person, including what awareness of the system he/she can be expected to have, in order to ascertain whether the extent of delay was justified.

The Supreme Court relied on UNHCR’s 1999 Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, which states: ‘given the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum-seeker to another, there is no time limit which can be mechanically applied or associated with the expression “without delay”’.

‘Coming directly’

Following the Supreme Court’s judgment, the new guidelines also exempt from prosecution refugees who have made necessary stops in other safe countries before reaching Norway. Under Article 31, to be exempted from penalty, a refugee must be ‘coming directly from a territory where their life or freedom was threatened’. Previously, the Norwegian policy interpreted this as exempting from prosecution only those asylum seekers who had not passed through any other ‘safe country’ during transit.

The UNHCR Guidelines explain that the term ‘coming directly’ ‘also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept “coming directly” and each case must be judged on its merits’.

The Supreme Court’s judgment, and the amended guidelines for police, uphold the recommendations of ECRE member the Norwegian Organisation for Asylum Seekers (NOAS), who intervened in the legal proceedings and advocated for reforming Norway’s application of Article 31 in their February 2014 report entitled ‘Detention of Asylum Seekers: Analysis of Norway’s international obligations, domestic law and practice’.

NOAS and the UN Special Rapporteur on Arbitrary Detention Mads Andenæs have argued that those wrongfully imprisoned under the previous guidelines must be released if still in detention and that they must be given compensation.

In their judgment in Case C-481/13 Qurbani, which is due on 17 July 2014, the Court of Justice of the European Union is expected to provide further interpretation of the Refugee Convention with regard to penalising refugees for breaching immigration rules.

Read the amendment to the guidelines (Norwegian only), and NOAS press releases following the Supreme Court decision and amended guidelines (both in Norwegian).

Suspension of forced removals to eight provinces of Iraq

The Norwegian Directorate of Immigration and Immigration Appeals Board announced last month a suspension of forced returns to eight of the 19 provinces of Iraq, in view of ‘the deteriorating and unpredictable security situation in Iraq’. Until further notice, applicants will not be returned to the provinces of Anbar, Babylon, Baghdad, Diyala, Karbala, Kirkuk, Ninewa and Salah al-Din.

According to the Directorate’s press release, ‘applicants who have previously received a [return] decision … to one of these those provinces, are until further notice not obliged to leave Norway. This does not mean they will get a residence permit, but that they for now have legal residence in Norway’. According to the Norwegian Organisation for Asylum Seekers (NOAS), such persons, like asylum seekers who have no documented identification, have no right to work. However, they do have a right to stay in a reception centre and, if they do, will receive a small cash payment. The cash payment is roughly half the amount for those who haven’t received a return decision. The Directorate adds that it ‘awaits further developments and does not process applications that involve forced returns to the above mentioned provinces in Iraq’.

NOAS wrote a letter to the Ministry of Justice and the Appeals Board asking them to suspend forced returns to all of Iraq, and to stop processing applications until the situation is more stable. In the alternative, NOAS argues that Norway must grant protection status to Iraqi applicants, at least those from the 8 provinces mentioned above. NOAS also argued in their letter that Iraqis whose asylum claims are rejected should not be returned to Northern Iraq, which now hosts 500,000 Internally Displaced Persons and faces a possible humanitarian crisis.

Read the Directorate’s press release.

Norway halts return to Italy of Syrian single mother and her children under the Dublin procedure

Last week the Norwegian Immigration Appeals Board deferred implementation of the decision to return a Syrian single mother and her children to Italy under the Dublin Regulation. The Board will now consider if it shall make use of the Dublin Regulation’s sovereignty clause and return the case to the Norwegian Directorate of Immigration for processing in Norway, or to uphold the prior decision to return the family to Italy.

The Norwegian Organisation for Asylum Seekers (NOAS) expects the Norwegian authorities to follow Denmark’s decision to temporarily suspend all pending Dublin returns to Italy of families where, either there is a child under 5 years, or one family member has a serious physical or mental disorder. According to the NOAS press release, after correspondence with the European Court of Human Rights, the Danish authorities decided to halt returns to Italy for such persons pending the decision of the Grand Chamber in Tarakhel v. Switzerland. This decision follows from seven Rule 39 requests for interim measures made by the Danish Refugee Council in such cases, all of which were successful. In the Tarakhel case, judgment on which is expected soon, the Tarakhel family submits that return to Italy under the Dublin Regulation would subject them to ill-treatment on account of Italian accommodation conditions for asylum seekers.

With the support of political parties and other NGOs, NOAS calls on Norway to stop all returns of Syrians under the Dublin Regulation.

Read the NOAS press release (Norwegian only).

The Weekly Legal Update would like to thank André Møkkelgjerd at NOAS and Halvor Frihagen, the Norwegian ELENA coordinator, for informing ECRE about these developments.

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Germany: Federal Administrative Court rules that ‘systemic deficiencies’ are required to suspend Dublin removal

Asylum seekers who appeal against their removal to another Member State under the Dublin Regulation must prove ‘systemic deficiencies’ in the asylum procedure or reception conditions of the destination State in order to successfully prevent removal, the German Federal Administrative Court ruled on 6 June 2014.

In the absence of ‘systemic deficiencies’, according to the highest court in Germany, it is not sufficient to prevent Dublin removal that the asylum seeker can prove an individual future risk of ill treatment contrary to Article 3 ECHR (and Article 4 of the Charter of Fundamental Rights of the EU) or that they have previously been exposed to such treatment in the destination country. The court concludes that such an assessment of individual future risk and past experiences are instead to be taken into account in the overall assessment of the existence of systemic deficiencies.

The court noted that the personal experiences of the asylum seeker may date back some years ago, and may therefore be countered by more recent developments in the country concerned. The Court also noted that individual experiences of treatment contrary to Article 3 ECHR or Article 4 CFREU do not lead to a change in the burden of proof regarding the question of the systematic deficiencies.

The Court based its conclusion on a previous Federal Administrative Court judgment from March 2014, which noted the founding presumption of mutual trust and respect for human rights inherent in the Dublin system. According to the court in that decision, the presumption can only be rebutted where, due to ‘systemic deficiencies’ in a Member State, there’s a considerable, i.e. predominant probability (“beachtlicher, d.h. überwiegender Wahrscheinlichkeit“) that the individual, if removed to that country, will be the victim of ill-treatment. Such deficiencies, due to their systemic nature, can – from the point of view of the German courts and authorities – be predicted in a reliable way.

The case concerns a male asylum seeker from Morocco, who was fingerprinted in Italy in 2009, but did not file an asylum application there. ln October 2009 he reached Germany and applied for asylum. He was returned to Italy under the Dublin Regulation, but came back to Germany in January 2011 and applied again for asylum. Proceedings to resist his second removal to Italy resulted in the case reaching the Federal Administrative Court, whose final judgment now legalises the asylum seeker’s return to Italy.

The court relied on the reasoning of the Court of Justice of the EU in N.S. & Others C-411/10, the judgment in which the term ‘systemic deficiencies’ originates, as well as the European Court of Human Rights’ subsequent adoption of the related term ‘systemic failures’ in recent jurisprudence, including Mohammed Hussein v The Netherlands & Italy (no. 27725/10) (2 April 2013) (Inadmissibility Decision) para. 78, and Daytbegova & Magomedova v Austria (no. 6198/12) (4 June 2013) (Inadmissibility Decision) para. 66.

The German court did not accept that a preliminary reference to the Court of Justice of the European Union was necessary to clarify the applicable test for Dublin appeals.

This ruling can be contrasted with the judgment of the UK Supreme Court in EM (Eritrea) [2014] UKSC 12, of 19 February 2014, which concluded that asylum seekers do not need to prove ‘systemic deficiencies’ in the destination State’s asylum system in order to prevent removal (see Weekly Legal Update 21 February 2014).

Read the judgment (German only) of the Federal Administrative Court.

The Weekly Legal Update would like to thank Prof. Dr. Holger Hoffmann, the German ELENA coordinator, for informing ECRE about this judgment.

Based on an unofficial ECRE translation.

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Greece: Authorities continue to indefinitely detain migrants despite Athens Administrative Court ruling the practice unlawful

Although the Athens Administrative Court of First Instance ruled on 23 May that indefinite detention of migrants violates national, European and International Law, migrants in detention centres and police stations across the country, including in the pre-removal centres in Amygdaleza, Corinth and Xanthi, continue to receive decisions prolonging their detention beyond 18 months. It has been reported that since March more than 150 people in the region of Attica alone have been issued decisions prolonging their detention for more than 18 months.

The decision of the Athens Court was taken following an application lodged by Greek Council for Refugees (GCR), member organisation of ECRE, against the prolongation of detention for an indefinite period of an Afghan citizen after he had already been detained for 18 months.

The judgment confirms the severe criticism previously expressed by GCR, ECRE and other national, European and International Organisations regarding Opinion 44/2014 of the Greek State Legal Council and approved by the Minister of Public Order and Citizen Protection authorising the prolongation of detention beyond the 18-month time limit set by the EU Returns Directive. In particular, according to the Court, “the restrictive measure imposed on the defendant – i.e. the obligation to stay in a detention centre – effectively is in fact equivalent to the extension of his detention”, where detention beyond 18 months “does not have any base in the relevant legislation” and thus the detainee must be released.

The living conditions of detained migrants in Greece are appalling and have been found inhumane and degrading by the European Court of Human Rights in several cases. Moreover, as shown by the AIDA Report on Greece published today, migrants detained do not have effective access to justice, due to the lack of free legal aid. 

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United Kingdom: Detained Fast Track procedure for asylum seekers is unlawful because of unacceptable delay in provision of lawyer, rules High Court

The UK’s ‘Detained Fast Track’, a procedure that detains asylum seekers whose claims are considered capable of being determined quickly, has been declared unlawful by the High Court because applicants allocated to it are not provided with legal assistance quickly enough, leaving insufficient time, often less than 24 hours, to prepare for the substantive asylum interview. According to the judge, prompt legal support would be able to ‘assist in the identification and removal of torture, trafficking and other potentially vulnerable cases, which the screening process [for the Detained Fast Track] is not well equipped to do’ [198]. This ‘crucial failing’ leads the judge to conclude that the Detained Fast Track involves ‘an unacceptable risk of unfairness’ [221-222].

The judge criticised the screening process, which determines whether asylum applicants should be allocated to the Detained Fast Track, as insufficiently focused on ‘the effect on the fair presentation of the claim which the timetable and the fact of detention may have’ [220] for chosen applicants. But it was the failure in the provision of early legal advice that leaves screening mistakes uncorrected, thereby causing the unacceptable risk of unfairness.

‘It is difficult to see why legal representation should not be organised the day after induction for those requiring it’ [196], argues the judge. Substantive decisions are made within 10-14 days following allocation to the Detained Fast Track. The fact that legal advice is provided too close to the substantive interview ‘means that in too high a proportion of cases, and in particular for those which might be sensitive, the conscientious lawyer does not have time to do properly what may need doing’ [196].

The judge found other aspects of the Detained Fast Track to be lawful: ‘It does not contradict the provisions of statute or Directive, nor is it in breach of the ECHR. The inclusion of the appeal process in the [Detained Fast Track] is lawful. The overall test in relation to a quick but fair decision is lawful. I do not accept the arguments that particular claims should of themselves be excluded. The period of detention overall is not unlawful in general. I do not consider that there is discrimination against women applicants in the process’ [219].

The judicial review of the Detained Fast Track was brought by UK charity Detention Action.

Read the judgment in Detention Action v SSHD [2014] EWHC 2245 (Admin) and Detention Action’s press release

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Asylum Aid: Report on the use of the Internal Protection Alternative in asylum decisions in the UK

On 1 July ECRE Member Asylum Aid launched a report entitled ‘Even if…the use of the Internal Protection Alternative in asylum decisions in the UK’The concept of the ‘Internal Protection Alternative’ permits a country to refuse the applications of asylum seekers who are deemed to be at risk in their home area on the basis that can be reasonably expected to safely travel to and settle in another part of their country. This report finds that it is regularly used as a fall-back option where an asylum application has been deemed not to be credible in the first place, rather than as a protection alternative for someone with a well-founded fear of persecution in their home region.

In particular, the findings show that, when applying this legal concept in practice, insufficient consideration is sometimes given to the difficulties that may be faced by single women or members of other marginalised groups, such as LGBTI people, in some parts of the world. The report examines both the practice and procedure used when applying the internal protection alternative concept in asylum claims, including the issues of safety and reasonableness concerning the new relocation area. This research forms part of the ECRE coordinated project Actors of Protection and the application of the Internal Protection Alternative (APAIPA)’ which examines the use of these legal concepts in 11 selected EU Member States. A comparative report is forthcoming.

Read the report and blog article by Asylum Aid.

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Bordermonitoring.eu: Report on the situation of asylum seekers and refugees in Bulgaria

In its report Trapped in Europe’s Quagmire: The situation of asylum seekers and refugees in BulgariaBordermonitoring advises against sending asylum seekers to Bulgaria under the Dublin Regulation until the country can ensure dignified treatment of asylum seekers and refugees on its territory. Bordermonitoring stresses that a dignified living for asylum seekers and refugees is still not secured: the limited range of medication in the camps, poor provisions for people with special medical needs, and gaps in the national health-care system lead to insufficient and delayed medical services despite the efforts of volunteers, NGOs and state employees.

The report concludes with a series of recommendations to the Bulgarian authorities: to immediately investigate and prevent the occurrence of pushbacks and violence at the border; to increase the number of social workers, medical staff, and translators; to provide accommodation to all asylum seekers throughout the asylum procedure as prescribed by the Bulgarian Law for Asylum and Refugees and the Reception Conditions Directive; and to investigate physical attacks against asylum seekers, undocumented migrants, and refugees.

Read the report on Bulgaria by Bordermonitoring.eu.

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Asylum Information Database: Updated reports on Austria and Poland

The Asylum Information Database (AIDA) compiles information on asylum procedures, reception conditions and detention in 14 Member States. Original country reports for each Member State were published in July 2013, and are subject to periodical updates. New updated AIDA reports on Austria and Poland are now online.


The updated AIDA Report on Austria, compiled by ECRE member organisation Asylkoordination Osterreich, shows that as of January 2014, detained asylum seekers no longer have the right to be represented in appeals or assisted at hearings by their legal advisers. Nevertheless, NGOs may visit detained asylum seekers and represent them in appeals. Furthermore, free legal advice is no longer granted in case alternatives to detention are applied.

The report also notes that unaccompanied children, assisted by their legal representative, will be able to lodge an appeal against a negative decision on their application within one month, while other asylum seekers are granted a two-week time limit for appeals.

Finally, the report discusses the reorganisation of the Federal Asylum Agency, responsible for the examination of asylum requests, into the new Federal Office for Immigration and Asylum (BFA), now also in charge of return orders and immigration detention. Such reorganisation was brought about by a new Federal Law on procedural rules for the granting of international protection, which entered into force on 1 January 2014.

Read the updated AIDA report on Austria.


The updated AIDA report on Poland, compiled by ECRE member organisation Helsinki Foundation for Human Rights, highlights that as of 1 May 2014, with the entry into force of the new Law on Foreigners, asylum seekers who receive a negative decision on their application can no longer be deported while a court is examining their appeal against a negative decision on their application. The new law has separated asylum and return proceedings. As a consequence, asylum seekers are no longer issued a return order together with a negative decision on their application.

Regarding detention, asylum seekers can now be detained for maximum 6 months. If people apply for asylum in detention, their stay in detention can be prolonged for 90 days. If they receive a negative decision on their application within this period of time, their detention can be prolonged even if they lodge an appeal against the negative decision on their application. As a consequence, there are instances of asylum seekers who spend their whole asylum proceedings in detention.

Under the new law, people appealing a return decision to the court (after an administrative appeal has been rejected) can see their detention prolonged by 6 months.

Before May 2014, asylum seekers and migrants awaiting return could be detained for up to 12 months, including the detention period during asylum and return procedures. Now, irregular migrants can be detained for maximum 18 months in return procedures. Therefore, asylum seekers whose applications have been rejected can be detained for up to 6 months during the asylum procedure and 18 months during the return procedure, altogether 24 months.

The new law also introduced alternatives to detention during both asylum and return proceedings, including reporting obligations, deposit, and confinement to an assigned location.

Finally, the report shows that Poland recorded its highest number of asylum seekers in 2013, with 15,245 asylum requests compared to 10,753 in 2012. The main countries of origin were Russia, Georgia, Syria and Armenia.

Read the updated AIDA report on Poland.

These reports are part of the Asylum Information Database (AIDA), a project of the European Council on Refugees and Exiles (ECRE), in partnership with Forum refugiés-Cosi, the Hungarian Helsinki Committee and the Irish Refugee Council. AIDA focuses on asylum procedures, reception conditions and detention of asylum seekers in EU Member States.

Articles first published in ECRE Weekly Bulletin 4 July 2014.

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Belgrade Centre for Human Rights: Report on the state of asylum system in Serbia

In its latest report on the state of asylum in Serbia, the Belgrade Centre for Human Rights (BCHR) raises concerns regarding asylum seekers’ access to Serbian territory and asylum procedures. BCHR stresses that in 2013, Belgrade airport officers recognised only the intention of two people to seek asylum and to BCHR’s knowledge only one of them had access to Serbian territory. Asylum seekers in 2013 complained to the BCHR that the police failed to issue them with certificates of their intention to seek asylum.

BCHR underlines that the work of border authorities in fulfilling their obligation to enable asylum seekers to access the asylum procedure needs to be more transparent and subject to independent monitoring. BCHR recommends that this be conducted by NGOs, as it is the case in other countries in the region, such as Croatia.

According to BCHR, in 2013, Serbia’s Asylum Office continued to automatically apply the safe third country concept, pursuant to the 2009 Government Decision on List of Safe Countries of Origin and Safe Third Countries (that has never been amended). This practice leads to the risk of violation of the principle of non refoulement.

The report stresses that the Government of Serbia has failed to obtain guarantees that the countries it was declaring safe review asylum applications in efficient and fair proceedings before it adopted the list. In determining whether a particular country is safe, the Serbian Government only takes into consideration the opinion of the Serbian Ministry of Foreign Affairs, whether the country has ratified the 1951 Refugee Convention and whether it has a visa-free regime for Serbian citizens.

Serbia’s list of safe third countries includes all of Serbia’s neighbouring states and some countries with very problematic and inaccessible asylum systems, such as Greece. In 2013, the Asylum Office dismissed the applications of most asylum seekers having passed through or lived in a country on the safe country list without examining whether that state fulfilled the other requirements to be qualified as safe.

5,066 people expressed their intention to seek asylum in Serbia in 2013, including 598 unaccompanied children. In the same period, 742 asylum seekers were registered and 153 asylum applications were submitted. The Asylum Office delivered 193 decisions. The review of 176 applications was discontinued. Only 19 asylum seekers were interviewed and only four people were granted international protection.

Most people who expressed the intention to seek asylum were from Syria (1,338), Eritrea (624), Somalia (507) and Afghanistan (249). 

Read the report on Serbia.

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