European Court of Human Rights
Mohammadi v. Austria (no. 71932/12), 3 July 2014
The applicant was an Afghan child at the time he entered Austria in 2011
and claimed asylum. He left Afghanistan via Serbia, Turkey and Greece,
and spent some time in Hungary where he was forced to submit an asylum
He submitted that the Hungarian authorities did not give any consideration
to the fact that he was minor and two to three days later he travelled to
Vienna, Austria. The Austrian Bundesasylamt (Asylum Office) rejected the
applicant’s asylum request and stated that the applicant must go to Hungary
in accordance with Article 16(1)(c) of the Dublin II Regulation. Following
further national judicial challenges and an appeal which was subsequently
dismissed as unfounded, a Rule 39 application to the ECtHR was granted,
thereby suspending removal to Hungary.
The applicant complained before the ECtHR that his forced transfer to Hungary would subject him to treatment contrary to Article 3 (prohibition of ill-treatment) ECHR, chiefly on account of (1) the risk of arbitrary detention of asylum seekers and the detention conditions in Hungary, and (2) the risk of refoulement to Serbia without having his asylum claim considered on the merits.
The ECtHR noted that the applicant has now attained full age and that the legal regime applicable to minor asylum-seekers in Hungary is not to be addressed in the instant case. The Court also observed that the present case is similar to the June 2013 case of Mohammed v Austria (no. 2283/12) where the ECtHR found that the transfer of an asylum seeker to Hungary was not a breach of Article 3 ECHR in light of 2013 amendments to the Hungarian legislation pertaining to asylum seekers.
Regarding complaint (1), the ECtHR relied on information provided by UNHCR, the Hungarian Helsinki Committee and the Asylum Information Database April 2014 country report on Hungary to conclude that, in spite of shortcomings in detention conditions, there appear to have been improvements.
In addition, the ECtHR evaluated the positive and negative consequences of the 2013 amendments to Hungarian asylum law: although ‘the grounds for detention are vaguely formulated, and there is no legal remedy against asylum detention’, ‘there is no systematic detention of asylum-seekers anymore, and that alternatives to detention are now provided for by law. The maximum period of detention has been limited to six months’ . The ECtHR also noted that the UNHCR has never issued a position paper requesting EU Member States to refrain from transferring asylum seekers to Hungary, as they have for Greece and, temporarily, for Bulgaria. For these reasons the ECtHR concluded that there would be no real risk of treatment contrary to Article 3 ECHR upon return to Hungary.
As regards complaint (2), on access to asylum proceedings in Hungary and the risk of refoulement to Serbia, the ECtHR observed that both the UNHCR and the Hungarian Helsinki Committee in their latest reports state that, since the changes in legislation, asylum seekers transferred to Hungary under the Dublin procedure whose claims have not already been examined and decided in Hungary (as is the case with the present applicant) have access to a full examination of their claims. The ECtHR noted that the applicant would have the chance to re-apply for asylum if returned to Hungary. It was also noted that Hungary no longer relies on the safe third country concept as regards Serbia.
Overall the Court concluded that ‘the relevant country reports on the situation in Hungary for asylum-seekers, and Dublin returnees in particular, do not indicate systematic deficiencies in the Hungarian asylum and asylum detention system’ . Therefore the applicant’s transfer to Hungary would not violate Article 3 ECHR. The Rule 39 interim measure will remain in place until the judgment becomes final or until further notice.
Read the judgment of the European Court of Human Rights.
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Press Release: ECtHR rejects request for interim measures by migrants evicted from a camp in Calais, France
On 27 June 2014, the Lille Administrative Court ordered the eviction of several hundred migrants from a camp at a food distribution centre on an industrial site in Calais, which they had been occupying since the end of May 2014 in ‘insanitary conditions’. On 1 July 2014, the ECtHR received a request from representatives of the migrants to apply Rule 39 interim measures to suspend the eviction. The following day, in response to information received from the French authorities, the ECtHR rejected the request for interim measures, holding that it was satisfied as to the safeguards afforded to the evicted persons: a ‘Calais emergency accommodation plan’ according to which the evicted migrants will be provided with emergency accommodation, can avail themselves of French reception facilities and assert their right to remain on French territory. The ECtHR however notes that ‘the applicants may still, if they wish, pursue their applications on the merits’, which are lodged with the ECtHR as Abdelslam and Others v. France (application no. 47522/14).
Read the press release of the European Court of Human Rights.
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Upcoming judgments of interest
Tuesday 8 July 2014
M.E. v. Denmark (no. 58363/10) [Articles 3 and 8] (Expulsion due to drugs offence of stateless Palestinian to Syria in November 2010, where he was detained and tortured, and separated from his wife and children)
M.P.E.V. and Others v. Switzerland (no. 3910/13) [Articles 8 and 13] (Expulsion of applicant to Ecuador due to burglary convictions, separating him from his child and ex-wife)
Thursday 10 July 2014
Mugenzi, Tanda-Muzinga, and Senigo Longue and Others v. France (nos. 52701/09, 2260/10 and 19113/09) [Article 8] (Obstacles to family reunification with children faced by Rwandan and Congolese refugees and the Cameroonian wife of a French national)
Read the forthcoming judgments press release of the European Court of Human Rights.
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Official Journal: Regulation on Frontex-coordinated search and rescue operations
The new EU Regulation on Frontex-coordinated maritime surveillance and rescue operations has been published in the Official Journal and will enter into force on 17 July 2014 (20 days after publication on 27 June). Operations not co-ordinated by Frontex are not covered. The proposed Regulation establishes rules on interception, search and rescue in territorial waters and on the high seas, disembarkation, and the protection of fundamental rights of migrants in distress at sea.
Read the Regulation. The 18 April 2014 Weekly Legal Update has more detailed information, and Professor Steve Peers has published a full assessment of the new Regulation on his EU Law Analysis blog.
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FRA and ECtHR: Handbook on European law relating to asylum, borders and immigration
The Handbook on European law relating to asylum, borders and immigration, jointly produced by the European Court of Human Rights and the EU Fundamental Rights Agency (FRA), examines ‘the relevant law in the field of asylum, borders and immigration stemming from both European systems: the European Union and the Council of Europe. It provides an accessible guide to the various European standards relevant to asylum, borders and immigration’.
According to FRA’s press release, the Handbook is for legal practitioners, judges, border guards, immigration officials and NGOs, and ‘is based on the case law of the European Court of Human Rights and the European Court of Justice as well as on the relevant EU regulations and directives. It is also a first point of reference on the European Social Charter (ESC) and other instruments of the Council of Europe’.
The Handbook is divided into nine chapters: (1) access to the territory and to procedures; (2) status and associated documentation; (3) asylum determination and barriers to removal: substantive issues; (4) procedural safeguards and legal support in asylum and return cases; (5) private and family life and the right to marry; (6) detention and restrictions on the freedom of movement; (7) forced returns and manner of removal; (8) economic and social rights; (9) persons with specific needs.
Read the Handbook, and the press releases of the ECtHR and FRA.
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UNHCR: Updated protection considerations related to the developments in Ukraine
The security situation in Ukraine has, according to UNHCR’s updated guidance, continued to deteriorate, causing the internal displacement of some 54,400 people (42,200 from the Donetsk and Luhansk regions in Eastern Ukraine, and 12,200 from Crimea), mostly to the Kyiv and Lviv regions. Given that many internally displaced persons are not registered, UNHCR estimates that the true figure may be ‘considerably higher’.
In addition, according to UNHCR figures, about 14,000 people from Ukraine have sought asylum in neighbouring countries, mainly Russia, since the beginning of 2014. In addition, Russia and Poland have granted or extended the residence permits of over 94,000 Ukrainians. UNHCR recommends that these residence permits continue to be extended until the situation stabilises.
Given that ‘the overall situation remains volatile’, UNHCR reasserts their previous March 2014 position that Ukraine should not be designated as a ‘safe country of origin’ – asylum applicants from Ukraine should therefore not be subjected to an accelerated procedure with reduced safeguards.
UNHCR also notes that, while all asylum claims from Ukrainians should be fully considered, ‘claims for international protection of persons having been involved in recent developments, including, for example, political activists, journalists and human rights defenders may need to be given particular attention’.
For asylum decision-makers considering whether a Ukrainian applicant could be reasonably expected to relocate to another part of Ukraine, UNHCR recalls that the existence of family or community support in the proposed relocation area is a relevant consideration. UNHCR cautions that ‘for Crimean Tatars and persons originating from the east without family and community links in other parts of Ukraine, such support networks may not be available’.
UNHCR also highlights the challenges faced by internally displaced persons in Ukraine: lack of access to social services or unemployment benefits due to the absence of required documentation; loss of former income and inaccessibility of bank accounts; barriers to obtaining residence registration due to being housed in temporary shelter; lack of employment opportunities in relocation area; temporary shelters being ill-equipped for winter; and an inability to benefit from the use or value of their abandoned property.
Ukraine’s adoption of specific legislation and procedures for persons displaced from Crimea has guaranteed their free movement, access to education and medical care, the restoration of identity cards and the exercise of voting rights. However, UNHCR says that no framework currently exists for displaced persons from the eastern regions troubled by continuing unrest.
Read UNHCR’s updated protection considerations with regard to Ukraine.
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United Kingdom: Court of Appeal rejects claim that French ban on religious clothing in schools must halt transfer of Iranian child asylum seeker under Dublin Regulation
In R (B & Anor) v SSHD & Anor  EWCA Civ 854 (24 June 2014), the England and Wales Court of Appeal has rejected the submissions of an Iranian father and daughter, who sought asylum in the UK, that their return to France in accordance with the Dublin Regulation would violate their right to family life, religious freedom and non-discrimination (Articles 8, 9 and 14 ECHR respectively) on account of the French law of 2004 that bans the wearing of religious clothes or symbols in schools. The Court also dismissed an additional claim that the Dublin removal of the family would constitute an unlawful disregard to the need to ‘safeguard and promote the welfare of children when making immigration decisions’ under Section 55 of the Borders, Citizenship and Immigration Act 2009.
The Court of Appeal held that, first, the UK courts should only assess the compatibility with the ECHR of legislation enacted by a foreign legislature in exceptional circumstances. The Court was not persuaded that such circumstances exist in this case.
Second, the Court noted that a distinction is to be drawn in a removal context between Articles 2 and 3 (right to life and prohibition of ill-treatment), which require a ‘real risk’ of violation to halt an expulsion, and Articles 8 and 9, which require a ‘flagrant’ violation. Six conjoined complaints lodged with the ECtHR against France concerning the Convention-compliance of the 2004 law – Aktas (no 43563/08), Bayrak (no 14308/08), Gamaleddyn (no 18527/08), Ghazal (no 29134/08), Singh (no 25463/08) and Singh (no 27561/08) – were dismissed as ‘manifestly unfounded’. Given that the 2004 law is not even considered as a ‘violation’ by the ECtHR, the Court of Appeal held that ‘the present claim comes nowhere near satisfying the stringent “flagrancy” test that is required to be satisfied in an article 8 or 9 case’ . In addition, on the facts, the daughter would be exposed to ‘expulsion’ from school if she wore religious clothing, but not a criminal sanction. And, the effect of expulsion is, according to the Court, mitigated by the possibility of private education.
The Court of Appeal also accepted that ‘it would be inconsistent with the policy of the Dublin II Regulation if a non-responsible state (the UK in this case) were required to assess Convention challenges to the legislation of a responsible state (in this case France)’ [23-24].
On compliance with the duty to safeguard a child’s best interests, the Court of Appeal concluded that ‘[t]his is not a case where those interests were ignored or treated as being of little or no importance. The Secretary of State considered it to be of some significance that the majority of [the daughter’s] life had been spent outside the UK. In both letters, she said that any adverse effect of her removal to France would be limited by the fact that she was remaining with her father, her primary carer. In the letter of 7 May 2014, she specifically addressed the issue of the Law of 2004 and noted that she would be unable to attend public school if she chooses to wear a religious garment, but it would be open to her to be educated elsewhere (either at home or at a private school). Importantly, she said that she considered that any adverse effect removal may have was proportionate to the need to maintain an effective immigration control and an efficient implementation of the Dublin II Regulation’ .
Read the judgment of the Court of Appeal.
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