ELENA Weekly Legal Update
10 April 2015
Following on from the majority judgment in June, rejecting the applicant’s complaint that return from Sweden to Libya would expose him to a risk of persecution based on his homosexuality, the Grand Chamber has decided to strike out the application in accordance with Article 37 § 1(b) of the Convention.
Surmising the developments that had taken place since the Chamber’s judgment in June, the Grand Chamber makes specific reference to the Migration Board’s decision to grant the applicant a permanent residence permit . This decision was rendered by the Board following a deterioration of the security situation in Libya, owing to continuous political instability which appears to be unwavering. Against this background, and a new domestic legal comment concerning the situation in Libya, the Migration Board found that the deterioration in security alongside the applicant’s homosexuality constituted a new circumstance. This subsequently led to the finding that, if returned, the applicant would be subjected to persecution on account of his homosexuality.
Whilst the Swedish government requested the Grand Chamber to strike out the application in line with Article 37 para 1 of the Convention, the applicant conversely requested the application to be maintained, given that the matter of whether Sweden had breached Article 3 by its previous decisions had not been resolved. Similarly, the correctness of the previous Chamber’s reasoning had yet to be examined. Additionally, the applicant noted the pertinent human rights issues at stake in the judgment, notably rights of homosexuals in asylum cases [29-30], which required a continued examination.
Noting that Sweden’s own motion to grant a permanent residence permit to the applicant had effectively repealed the previous expulsion decision and, consequently, the threat of an Article 3 violation, the Grand Chamber found, in line with previous jurisprudence, (O.G.O. v. the United Kingdom) that the applicant no longer risked being expelled from Sweden. Accordingly, the matter had been resolved within the meaning of Article 37 § 1 (b) of the ECHR [34-35]. Indeed, the Court found that the Migration Board had taken the applicant’s homosexuality into account when finding that due to the deterioration of security the applicant would be at risk of persecution “since he lived openly as a homosexual and could be expected to continue doing so on his return” . Finding, therefore, that there was no need to retrospectively examine Sweden’s responsibility under Article 3, the Court additionally surmised that there were no special circumstances relating to human rights that required an ongoing examination of the case. The Court, thus, decided to strike the case out of its list.
The Grand Chamber has issued its second decision concerning Sweden and has, similarly, struck the case out of its list under Article 37 § 1 (b) of the ECHR. The Court’s previous judgment refused to find a violation of Article 3 if a single woman, member of a religious minority, were to be sent back to Southern and Central Iraq.
The Grand Chamber’s finding comes after the Migration Board’s decision to grant the applicant a permanent residence permit in Sweden. Whilst the Board did not consider the applicant as a refugee, the permit was issued in light of the general security situation in Baghdad as well as the applicant’s gender, religion and a lack of social network in Iraq. Conversely to what the ECtHR had previously found, the Board stated that internal relocation was not an alternative for the applicant given the high numbers of Iraqis fleeing to the Kurdistan Region within the space of a few months . On account of the Migration Board’s decision to grant a permanent residence permit as well as the applicant’s desire to discontinue the application in front of the Grand Chamber, the Court struck out the application in accordance with Article 37 § 1 (a) and (b) of the ECHR.
The CPT has published a report following on from its visit to Spain in 2014 where it monitored the treatment of irregular migrants, both at the borders, in detention facilities and at holding centres.
Firstly, with regards to administrative detention, the CPT found that detained foreign nationals were often requested to sign documents without being informed of their contents or being provided with an interpreter. This was particular apparent in Melilla, where the report also shines a spotlight on border practices and the Readmission Agreement with Morocco. Particularly disconcerting is the finding that no information has been furnished to the CPT on its use, despite repeated requests. Moreover, the frequent implementation by Spain of the “devolution procedure,” which provides for the possibility of returning to the border, within 72 hours, irregular migrants based on an administrative individual decision, is highly troubling given the international law norm violations such a procedure entails. In this vein the CPT notes video footage which shows forcible and often violent returns of migrants immediately at the border and even several hundred meters from the border, without any process of identification.
The Committee makes note of the Spanish amendment to the Aliens Act, now passed in law, questioning its legal basis. Spain is urged to provide officials with clear guidelines that migrants are not to be returned unlawfully without an individualised assessment of their protection needs and that an independent enquiry is undertaken with regards to reported violence. Additionally, as to reports that Moroccan Auxiliary Forces (MAF) are operating in between the border fences, forcibly removing migrants to Morocco, the CPT urges Spanish authorities to not hand over any migrants to the MAF.
As to conditions within detention centres the report notes allegations of both physical ill-treatment and verbal abuse by officers within the centres as well as police officers. Moreover, in the two centres visited, in Madrid and Barcelona, the environment documented was a carceral one with detainees being held in multi-occupancy cells, despite a number of cells being left unoccupied. Lastly, allegations were noted that in cases of deportation from both centres the migrants were often not informed of their impending deportation and, therefore, had no time to contact their lawyer.
In light of the obligation to provide an asylum applicant with a fair and effective opportunity to present the grounds for their application, EASO has published a structured practical guide intended to aid case officers in the handling of asylum interviews.
Providing information on relevant EU legislation the publication gives guidance to case officers on preparing the interview, including the identification of special procedural needs, conducting the interview, interview techniques, and the substance of the application. In this vein EASO refers in detail to the Qualification Directive and provides guidance regarding the substance of the claim which needs to be explored, as well as necessary post-interview actions.
The FRA have published its 2014 Handbook on European law relating to asylum, borders and immigration in Estonian, Lithuanian, Latvian, Czech, Slovak, Swedish, Slovenian and Portuguese. The Handbook, which provides a guide to the relevant legislation and jurisprudence in the fields of asylum, borders and immigration within the EU and Council of Europe frameworks, is now accessible in 19 EU languages.
Following on from the UNHCR’s observations on the situation of asylum in Greece in December 2014, the UNHCR has published a set of recommendations to the new Greek government relating to border management, reception conditions, access to procedures, unaccompanied and separated children, detention, integration, racism and statelessness.
Stipulating certain recommendations on access to the territory, the UNHCR calls for the adoption of internal rules and an action plan on procedures at the borders which fully respect international, European, domestic law and norms. In this vein, the UNHCR recommends Greece to ensure informal returns do not occur, that any allegations of said returns are investigated and that increased human resources are available to coast guard and local authorities in order to receive new arrivals and improve their material reception conditions. In terms of reception, the UNHCR calls on Greece to ensure First Reception Centres are fully equipped with staff, that tailored reception conditions are provided and a referral framework is set up for vulnerable applicants. Moreover, the UNHCR requests Greece to undertake an individualized examination of each deportation and detention order and issue a renewable six-month suspension, if removal is not feasible. Further attention is paid to the need to harmonise the status and rights of third-country nationals under deportation procedures and under return procedures if a return is not feasible.
On the topic of administrative detention, the UNHCR recommends that asylum applications of persons who are under pre-removal detention are processed and examined quickly and that detention orders meted out to asylum seekers are reviewed within 24-48 hours of issuance and then again on a weekly and monthly basis. The UNHCR further requests Greece to end the invocation of public security reasons for a ground of detention (pre-removal), where the return would not otherwise be feasible.
Other recommendations that the UNHCR set forth relate to the adoption of a public legal aid system for asylum-seekers, accelerated examination of the back-log of cases, a review of humanitarian statuses and better access to procedures for unaccompanied children through the strengthening of escorting and traveling arrangements. Lastly, reference is paid to integration, with the UNHCR urging Greece to expand the scope of family reunification to subsidiary protection status holders, improve processing time of reunification requests as well as ensuring that the renewal of residence permits are swift and effective.
The UNHCR has published its position paper on returns to Yemen. Finding the situation in the country to be highly fluid and uncertain, the UNHCR calls on all countries to allow civilians fleeing the country access to their territories. Moreover, the publication urges countries to suspend forcible returns of nationals or habitual residents of Yemen to the country, specifying that this is a minimum standard and should not be used to deviate from international protection obligations. In reaching this conclusion the UNHCR highlights the deterioration of political stability, an increase in air strikes, leading to a sharp rise in civilian fatalities, and fears that Yemen is on the brink of civil war with continuous armed conflict prevailing between the government and Houthi forces.
Indeed, the UNHCR reports that by the end of 2014, more than 330,000 Yemenis were internally displaced. Protracted rates of displacement are made worse by the fact that Yemen is already hosting more than 250,000 refugees, mostly from Somalia and countries from the Horn of Africa. Additionally, the publication details “an acute humanitarian crisis in Yemen caused by years of conflict, drought, and chronic poverty” with two thirds of the population in need of humanitarian assistance. The current instability has exacerbated already strained facilities with aid agencies reporting difficulties in accessing those in need. Lastly, the UNHCR reports that the mixture of conflict and weak rule of law has led to human rights abuses, gender-based violence, violations of children’s rights, trafficking, smuggling and military recruitment of children.
The case concerns a Nigerian national from the Edo State who was forced into prostitution after being trafficked into France. She later reported to the police the names of those involved in the prostitution network and applied for asylum. Fearing that if returned she would be suspected of prostitution, illegal in Nigeria, the applicant further claimed that she would be ostracised by her social and familial network, that she had breached the social contract given that she had not repaid the debt for her journey to Europe and that she would be viewed as being cursed by the community in light of a ritual ceremony in Nigeria which marked her allegiance to the trafficking network. Finding that whilst the victims of trafficking would be viewed upon disapprovingly by Nigerian society, given that the majority of female victims were later prostitutes in Europe, the French Office for the Protection of Refugees and Stateless People (OFPRA) found that this was not enough to constitute a particular social ground in accordance with the 1951 Geneva Convention and the Qualification Directive. Moreover, the Office considered that no information had been furnished to suggest that the victims of trafficking were submitted to persecutory acts if returned to Nigeria and, thus, refused the applicant’s asylum application.
Turning first to the question of particular social group, the French National Court of Asylum considered that in order to enter into a trafficking network, and thus prostitution, one must undergo a ritual in Nigeria which scars the body. Once in Europe the person is submitted to exploitation and threats if they try to leave the network. The Court finds that such women have a common background that cannot be changed. Secondly, the Court notes that credible international reports document that where a young female Nigerian returns home from Europe without any money, they are immediately suspected of prostitution, which is perceived extremely badly by local communities. This social alienation leads the Court to conclude that female victims of human trafficking from the State of Edo share a distinct identity, which they are unable to rid themselves of and thus such females should be considered as a particular social group in accordance with international and European law.
Lastly, the Court turns to the debt owed to a highly respected cult in the community, which has threatened the applicant’s physical integrity, as well as the discrimination faced if returned, and the severe risks presented to the applicant for denouncing the prostitution ring. Highlighting that such actors enforce a customary justice in the region, the Court further considers the lack of effective administrative and judicial protection as placing the breaks on any real investigation into criminal activities, such as trafficking. On account of her membership in a particular social group and her actions against the network, the Court sets aside OFPRA’s decision and grants the status of refugee to the applicant.
Based on an unofficial ELENA translation.
Going beyond what is prescribed for in law, the report details the long periods of detention that asylum seekers face in Cyprus. In this vein the publication highlights that since the end of 2014, asylum claims of persons in detention ought to be processed within 30 days, while appeals should take no more than 15 days, following the introduction of a fast-track procedure. If the applicant is granted international protection or the decision is delayed, he or she must be released. However, research gathered by Future Worlds Center, the authors of the report, suggests that the prescribed time-limits are not being followed by the authorities.
Furthermore, the report details that Cyprus continues to detain asylum seekers for deportation purposes as soon as their protection claims have been refused at first instance without affording them the opportunity to effectively exercise their right to appeal before the Supreme Court. Indeed, an appeal to the Supreme Court does not have suspensive effect and thus an applicant is subject to deportation during proceedings.
The report, however, notes that asylum seekers returning to Cyprus under Dublin procedures pending a final decision on their application are not detained in practice, in a break away from the country’s previous detention policy.
Lastly, the report indicates that approximately 65% of the persons applying for international protection in Cyprus are granted subsidiary protection. According to current statistics the majority of subsidiary protection status holders are Syrians. Given that current domestic legislation does not allow beneficiaries of subsidiary protection to apply for family reunification, many Syrian families are separated, leaving children unaccompanied and liable to exploitation.
ECRE/ELENA would like to express our appreciation to Amanda Taylor for her invaluable contribution to the ELENA Weekly Legal update and the ELENA and ECRE’s work over the past seven months. Amanda has contributed her energy and time in order to make the EWLU interesting, up to date and informative. She has also made a significant input to improve the newsletter and her excellent translation skills have made informing the EWLU subscribers of many important national judgments possible.
As of next week Amanda will be working on AIDA/EDAL databases, managed by ECRE, and we are sure that her commitment and professionalism will help us to improve these. We hope that Amanda continues her engagement with the ELENA network in her new role and wish her best of luck in her future endeavours.
Supported by the Fundamental Rights and Citizenship Funding Programme of the European Union and UNHCR