#ecre

This short piece, summarising the findings of a newly released report by ECRE, was originally published on the Asylum Information Database (AIDA). It is republished here with permission.

Against a backdrop of systematic pushbacks, the number of arrivals to the Aegean islands has decreased by almost 80%. Meanwhile, Minister of Migration and Asylum Notis Mitarakis is praising the efficiency of a “strict but fair immigration policy” defined by prevention and deterrence measures. The inauguration of the first of five new EU-funded “closed controlled” camps on Samos has been met with much criticism from local authorities and NGOs, as well as concern from the UN Refugee Agency (UNHCR).

On 25 August the Greek government tabled a Bill amending deportation and return procedures, residence permits and asylum procedures. The bill has been met with severe criticism for eroding protection and introducing new fees and fines imposed on asylum seekers and the organisations supporting them. Further, Greek Police are imposing fines of 5,000 euro for people on the move arriving by sea without Corona tests.

In their extensive comments, ECRE members the Danish Refugee Council (DRC), Greek Council for Refugees (GCR), and HIAS along with Refugee Support Aegean (RSA) raise severe criticism of the legislative proposals tabled by the Greek government. In light of “systematic and indiscriminate” deportation decisions by police against asylum seekers and the failure of administrative courts to ensure legal scrutiny, the law lacks sufficient clarifications of procedures prior to return or deportation and fails to ensure the right of applicants to remain on Greek territory until the end of the asylum procedure. The organisations identify a risk of refoulement given the lack of assessment of the merits and limited appeal options in such discontinued cases. The bill suspends safeguards for people at risk of non-refoulement and does not reinstate humanitarian protection in the asylum process. The reduction of the maximum time limit for voluntary departure from one year to 120 days prevents “safeguarding ties and schooling of children,” with the organisations underlining that “the abrupt severance of those ties amounts to difficultly reparable harm”. Further, the introduction of a 150 euro fine against beneficiaries of international protection submitting a late application for renewal of their residency permit, and a 100 euro fee for every subsequent asylum application violates EU law.

The following article was published by EDAL on 2 March 2021 with the permission of ECRE from the ELENA Weekly Legal Update.

On 1 March 2021, the cases A.I. and others v Poland (application no. 39028/17), T.Z. and M.M. and Others v Poland (application no. 41764/17) and A.B. and Others v Poland (application no. 42907/17) were communicated by the European Court of Human Rights (ECtHR). 

In each case, the applicants who were all Russian nationals from Chechnya, travelled to the Polish-Belarusian border crossing at Terespol on numerous occasions where they expressed fears for their safety and a wish to lodge an application for protection each time. On each occasion on which the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued and they were summarily turned away from the Polish border on the grounds that they did not have the necessary documents authorising their entry into Poland and that they were not at risk of persecution in their home country.

In each case, on various dates the ECtHR decided to apply interim measures and indicated to the Polish Government that the applicants should not be removed to Belarus. Despite this, the applicants were returned to Belarus on these occasions.

The following article was published by ECRE on 2 February 2021.

On 2 February 2021, AG Rantos delivered his Opinion in case C-194/19 on the interpretation of Article 27 of the Dublin III Regulation (Regulation 604/2013).

In May 2017, H.A., a person of Palestinian origin, arrived in Belgium where he applied for international protection. Subsequently, a Belgian “take back” request to the Spanish authorities was accepted and, on 1 August 2017, H.A. received an order to leave the Belgian territory. However, a few weeks later, H.A. filed an appeal to annul that decision and suspend its execution, as his brother had arrived and had lodged an application for international protection in Belgium after the order was issued. He argued that it was necessary for their applications to be examined jointly, given the common nature of their persecution. Nonetheless, the Council of Alien Law Litigation dismissed the action, stating that elements that occurred after the order to leave the territory could not affect that order’s legality. Subsequently, H.A. filed an appeal at the Council of State, underlining inter alia that the Council of Alien Law Litigation had limited itself to a legality review, and had not reviewed the elements that occurred after the issuance of the order.

The Council of State stayed the proceedings and asked the CJEU whether Article 27 of the Dublin III Regulation, considered alone or in conjunction with Article 47 of the Charter, must be interpreted as requiring a national court, in order to guarantee the right to an effective remedy, to take into consideration, where appropriate, circumstances arising subsequent to a “Dublin transfer” decision?

The AG first analysed Article 27 of the Dublin III Regulation, in light of Article 47 of the Charter, and recital 19 of that Regulation. He discerned two situations in which a tribunal is obliged to take into account elements that have occurred after a transfer decision was taken: (i) when an applicant risks being exposed to inhuman or degrading treatment in the responsible Member State and (ii) when certain elements occur after a transfer decision is taken, and are crucial for the correct application of Dublin III.

Regarding the latter situation, he highlighted, inter alia, the case of Shiri, where an applicant’s appeal against a transfer decision was judged to conform with EU law: the appeal targeted the circumstance that the six-month transfer deadline had expired after the transfer decision and was, thus, crucial for the correct application of Dublin III.

The following case note was published by ECRE on 21 January 2021.

On 21 January 2021, the Higher Administrative Court of North Rhine Westphalia published its judgment concerning the removal of an Eritrean national to Greece.

The applicant made an application for international protection in Germany in July 2018. A EURODAC search revealed that the applicant had previously received international protection in Greece in January 2015. The Federal Office for Migration and Refugees subsequently rejected the applicant’s asylum application as inadmissible and issued a deportation order against him to Greece. The applicant unsuccessfully appealed to the Administrative Court. The applicant further appealed to the Higher Administrative Court. 

Referring to, inter alia, the CJEU’s judgment in Ibrahim, the Higher Administrative Court, stated that Art. 33(2)(a) of the Procedures Directive (Directive 2013/32/EU) is transposed into domestic law in such a way as to prohibit the rejection of an application for international protection as inadmissible when an applicant has already received refugee status or subsidiary protection in another Member State, if the living conditions in that Member State would expose him to a serious risk of inhuman or degrading treatment under Article 4 of the Charter or the corresponding Article 3 ECHR. It further recalled that the CJEU assumes a violation of Article 4 of the Charter if the indifference of the authorities of a Member State would have the effect of placing a person wholly dependent on public assistance, irrespective of their will or personal choices, in a situation of extreme material poverty which would not allow him to satisfy his most basic needs- in particular the ability to feed himself, to wash himself and to find accommodation.

On the basis of publicly available information, the Court considered that it would be unlikely for the applicant to find decent accommodation and gainful employment in Greece. Moreover, it also noted that he would not have access to social benefits and therefore would not be a position to reasonably secure the minimum level of subsistence.

The following is based on an unofficial translation by the European Council on Refugees and Exiles (ECRE) ELENA Weekly Legal Updates team, which published the piece on 5 February 2021.

N.R. v Belgium (application no. 63620/19) concerns the case of an Afghan national who fled Afghanistan because of problems with the Taliban in his family. He is currently unlawfully staying in Belgium after the Belgian authorities rejected his application for international protection on the basis of (i) his subsidiary protection status in Italy, (ii) a lack of persecution risk in Afghanistan and (iii) the existence of an internal flight alternative in Afghanistan. Belgian courts either rejected his appeals or declared them inadmissible.

Additionally, the applicant applied to regularise his stay for medical reasons, as he suffers mental health problems, but saw his application rejected. After an unsuccessful appeal before the Council of Alien Law Litigation, the applicant is awaiting the decision of a Cassation appeal.

Before the European Court of Human Rights, the applicant complains under Article 3 and 13 ECHR, that the Belgian authorities did not conduct a rigorous and ex nunc review of his application for international protection: they did not examine the need for protection that resulted from his subsidiary protection status in Italy, nor did they take his mental health status into account when examining the existence of an internal flight alternative in Afghanistan. Indeed, the Belgian authorities rejected his medical certificates and disregarded the UNHCR Guidelines because his story lacked credibility.