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ELENA Weekly Legal Update
18 March 2016
The CJEU has given its judgment in case C-695/15 PPU Mirza after a preliminary reference under the urgent procedure by the Debrecen Administrative and Labour Court in Hungary. The Hungarian authorities, accepted a ‘take back’ request of a Pakistani asylum applicant from the Czech Republic pursuant to Article 18(1)c) of the Dublin III Regulation (DRIII). They then rejected his second application for international protection as inadmissible and ordered his removal to Serbia, as he had previously transited through Serbia which was deemed to be a safe third country by national decree. The applicant was detained which was contingent on the outcome of these proceedings, so the CJEU agreed to consider the preliminary reference under the urgent procedure. In relation to the substantive questions referred, the CJEU essentially follows the Opinion of Advocate General Kokott, summarised here.
It finds that the right of a Member State to send an applicant to a safe third country in Article 3(3) DRIII is not limited in time, operates subject to the requirements of the recast Asylum Procedures Directive, and can be exercised by any Member State, whether responsible pursuant to DRIII or otherwise. The wording of Article 33(1) rAPD does not restrict this right. As such, acceptance of responsibility for examining a claim for international protection in the context of a ‘take charge’ request does not preclude the responsible MS from deeming the claim inadmissible and sending the applicant to a safe third country. Article 18(2) DRIII also does not restrict the scope of Article 3(3) and allows a responsible MS to refrain from an examination of the substance of a claim. A different interpretation of this would unjustifiably introduce an exception to Article 3(3), as well as putting an applicant who is taken back after absconding before the examination of his claim is completed in a better position than an applicant who remains. This would risk encouraging secondary movement.
In relation to the second question, the CJEU finds that the fact that the responsible MS has not informed the transferring MS of its national rules and practice regarding safe third countries in the context of a ‘take back’ procedure does not preclude it from sending the applicant to a safe third country under Article 3(3) DRIII. An MS is not obliged to provide this information and it has no impact on the determination of the responsible MS or the rights of the applicant. The CJEU notes that the applicant still has the right to an effective remedy against the transfer decision (Article 27 DRIII) and the decision on his application for international protection (Article 46 rAPD).
Finally, Article 18(2) DRIII, in light of Article 28(2) rAPD does not require the responsible MS after taking back an applicant, to continue the examination of an application for international protection at the point at which it was interrupted.
Based on an unofficial ELENA translation. A press release by the CJEU in English is available here.
Advocate General Sharpston has given her Opinions in cases C-63/15 Ghezelbash and C-155/15 Karim which both relate to the scope of the right to an effective remedy in recital 19 and Article 27(1) of the Dublin III Regulation (DRIII).
CJEU: Case C-63/15 Ghezelbash
Mr Ghezelbash, an Iranian national, had his asylum claim in the Netherlands rejected following acceptance of a ‘take back’ request by France pursuant to Article 12(4) DRIII. After being informed of this, the applicant submitted circumstantial evidence in support of his claims that he had returned to Iran from France for over three months, and argued that the Netherlands was the responsible Member State (MS), as this was where he had lodged his first asylum claim. The Rechtbank den Haag requested a ruling from the CJEU on whether the applicant had the right to an effective legal remedy to appeal against the application of the Chapter III criteria used to determine the responsible MS.
AG Sharpston considers that DRIII is aimed at establishing a clear, workable method for rapidly determining the MS responsible to enable the expeditious processing of asylum claims, but also aims to improve the legal protection for asylum applicants. Recital 19 DRIII has two limbs, guaranteeing the right to an effective remedy against transfers covering ‘the application of the Regulation’ and the ‘legal and factual situation’ in the MS of transfer. The former must include the manner in which DRIII is applied, whilst the latter is now codified in Article 3(2). She sets out the three alternatives argued before the Court in relation to the scope of effective remedy under Article 27 DRIII.1. The maintenance of the CJEU decision in case C-394/12 Abdullahi
This option is rejected by AG Sharpston given her interpretation of the first limb of recital 19 of DRIII; the specific and complex factual scenario in Abdullahi which is distinguishable from the circumstances of this case; and the fact that Abdullahi related to Article 19 of the Dublin II Regulation, which differs significantly from Article 27(1) DRIII.2. Article 27(1) also creates a right of appeal in circumstances where DRIII has conferred rights on individuals aimed at protecting fundamental rights, which may be infringed by transfer
The AG considers that DRIII is not purely an inter-State instrument as it has introduced and reinforced certain substantive individual rights and safeguards. The scheme of Article 27 DRIII gives MSs flexibility to set out the rules for exercise of appeal, while the time limits and deadlines in DRIII generally make the process more speedy and efficient as compared to its predecessor. This enables MSs to act effectively to maintain the smooth working of DRIII even if there are frivolous or vexations appeals. Enabling an appeal against the misapplication of Chapter III criteria would not ‘open the floodgates’, and is consistent with the ruling in Petrosianand the rule of law. Article 27 protects the individual against disregard or incorrect characterisation of the relevant facts and against misinterpretation and misapplication of the relevant law.3. Article 27(1) confers the right of appeal against the application of the rules in DRIII, including the Chapter III allocation criteria, to the facts.
AG Sharpston considers that the principles of the right to defence (MM) and the right to be heard are relevant. Article 47 of the Charter, Article 13 ECHR and ECtHR case law provide that there must be effective domestic remedies to deal with the substance of an arguable complaint. Article 47 of the Charter requires an assessment of the lawfulness of the grounds which were the basis of the transfer decision and whether it was taken on a sufficiently solid factual basis.
She concludes that Article 27(1) DRIII should be interpreted as allowing an applicant to challenge, on appeal or by review, a transfer decision and request the national court to verify whether the Chapter III allocation criteria were correctly applied to his case.
For further information please see the oral submissions by counsel for Mr Ghezelbash.
CJEU: Case C-155/15 Karim
Mr Karim is a Syrian national who had his asylum claim in Sweden rejected after Slovenia accepted a ‘take back’ request pursuant to Article 13 DRIII. Slovenia confirmed its willingness to process the asylum claim after being informed of additional information which indicated that Mr Karim had left the territory of the Member States for over three months, in circumstances covered by Article 19(2). The applicant appealed against the transfer decision, and the Stockholm Administrative Court of Appeal requested a preliminary ruling.
AG Sharpston refers to her analysis in Ghezelbash, finding that Abdullahiis no longer applicable and that Article 27(1) allows the challenge of a transfer decision on the basis of misapplication of Chapter III criteria. She adds that this is necessary to allow an individual to effectively make his views known in relation to a transfer decision.
In relation to the second question, the AG notes that Slovenia’s acceptance of responsibility is not a transfer decision, so is not amenable to appeal under Article 27(1). However the assessment by the Swedish authorities of the information provided by Mr Karim in deciding to make a transfer decision is relevant to whether it correctly applied the Chapter III criteria. The review of this is a matter for national procedural rules. If it is established that he left the EU territory for over three months, meeting the conditions in Article 19(2) DRIII, any subsequent asylum application would give rise to a fresh procedure for determining the responsible MS.
On 10 March, the Hungarian government introduced a Bill to the Hungarian Parliament amending the Asylum Act and its implementing Decree which contains a number of proposals restricting the rights of asylum seekers and beneficiaries of international protection. The government gave four working days for civil society and international organisations to comment, restricting the possibility for meaningful dialogue, contrary to Act CXXXI on Public Participation in Developing Legislation. The Hungarian Helsinki Committee has raised concerns that the legislative package fails to comply with national law and the EU asylum acquis.
Proposed measures that are due to enter into force on 1 June 2016, following completion of the legislative procedure, include the termination of the newly introduced integration scheme for beneficiaries of international protection, reduction of the maximum period of stay in state-funded reception centres from 60 days to 30 days, the termination of all financial support to beneficiaries of tolerated stay status, a reduction in the eligibility period for free access to basic health care services following recognition from 1 year to 6 months and the introduction of mandatory automatic review of refugee and subsidiary protection status at 3 year intervals or where an extradition request is made.
The amendments set out in the Implementing Government Decree which are due to enter into force on 1 April 2016 include: the termination of the monthly cash allowance (pocket money) of HUF 7,125 (€23) granted for the first two months after recognition as a beneficiary of international protection, termination of a housing allowance and the removal of the possibility to work at reception centres. Furthermore the minimum space in detention facilities for asylum seekers and foreigners will be reduced to in detention facilities to 3m2 for single males and 3.5m2 for single women.
For further information, please see the comments by the Hungarian Helsinki Committee (in Hungarian), dated 7 March 2016. The ELENA Weekly Legal Update would like to thank Marta Pardavi, of the Hungarian Helsinki Committee for providing this information.
The UK Home Office has published a country information and guidance report to assist its decision makers on asylum and human rights claims relating to a fear of Al-Shabaab in South and Central Somalia.
Dr Aoife McMahon, a barrister at the Bar of Ireland, has written a blog post for the EDAL journal on the right to respect for private life under Article 8 ECHR in light of two recent judgments of the Irish Court of appeal, Dos Santos v. Minister for Justice and Equality  IECA 210 and C.I. v. Minister for Justice and Equality  IECA 192 which relate to the best interests of the child, the gravity of interference with Article 8 ECHR caused by their deportation and the issue of developing private life at a time when immigration status is precarious.
She provides an analysis of ECtHR case law relating to the consideration of the best interests of the child as part of the Article 8 ECHR analysis, arguing that this should be given due weight. She evaluates the test used by the Court in examining interference with Article 8 ECHR, submitting that the traditional two-step test should be used considering whether there has been interference, and then assessing the proportionality of this. Finally, she argues that the precarious nature of residence is simply a factor to be taken into consideration in this analysis.
Supported by the Fundamental Rights and Citizenship Funding Programme of the European Union and UNHCR