Case Law

The case concerned the conditions of detention of Syrian, Afghan and Palestinian nationals in the “hotspots” of Vial and Souda (Greece), and the lawfulness of their detention in those camps. The Court considered that the authorities had done all that could reasonably be expected of them in the Vial camp to meet the obligation to provide care and protection to unaccompanied minors. The other applicants had been transferred immediately – or within ten days – from the Vial camp to the Souda camp. The Court also held that the conditions of detention in the Souda camp did not amount to inhuman or degrading treatment. The Court reiterated its previous finding that a period of one month’s detention in the Vial camp should not be considered excessive, given the time needed to comply with the relevant administrative formalities. In addition, the length of the applicants’ detention once they had expressed their wish to apply for asylum had been relatively short. In contrast, the applicants, who did not have legal assistance, had not been able to understand the content of the information brochure; in particular, they were unable to understand the material relating to the various appeal possibilities available under domestic law.

3 October 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Access to procedures - Arbitrary arrest and detention - Freedom from torture, inhuman and degrading treatment - Legal representation / Legal aid - Right to liberty and security | Countries: Afghanistan - Greece - Palestine, State of - Syrian Arab Republic

violation of article 3 (prohibition of inhuman and degrading treatment).

28 February 2019 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Freedom from torture, inhuman and degrading treatment - Refugee camps - Unaccompanied / Separated children | Countries: Afghanistan - France - United Kingdom of Great Britain and Northern Ireland

The applicant is an Afghan national and member of the ethnic group of Hazaras who was born and raised in Iran. He lodged an application for international protection in Austria in July 2015 which was rejected in first instance in September 2017.The Federal Administrative Court dismissed his appeal on 03/09/2018, arguing that even though the applicant cannot return to Sar-e Pol (where his family was originally from), there was an IFA available in Kabul or Mazar-e Sharif. It elaborated that the applicant had already gathered professional experience, had grown up in an Afghan family and was native speaker of one of the official languages and concluded that the applicant was familiar with the cultural circumstances in Afghanistan. The Austrian Supreme Administrative Court annulled this decision. It stated that the Federal Administrative Court's conclusion that the applicant was familiar with the cultural circumstances in Afghanistan was not evidence-based and emphasized that that the applicant had explicitly contested this. Furthermore the Supreme Administrative Court criticized that the Federal Administrative Court did not take into account and analyse the UNHCR-Afghanistan guidelines. A respective obligation derives from the respective Austrian case law as well as from European Union Law. The Court emphasized that according to UNHCR there was in general no IFA available in Kabul and that the availability of an IFA in other cities was questionable and needed to be assessed in a thorough manner on a case-to-case basis.

13 December 2018 | Judicial Body: Austria: Supreme Administrative Court (Verwaltungsgerichtshof) | Topic(s): Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) | Countries: Afghanistan - Austria - Iran, Islamic Republic of

The second subparagraph of Article 46(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that subsidiary protection status, granted under legislation of a Member State such as that at issue in the main proceedings, does not offer the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical. Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

On 18 October, the Court of Justice of the European Union (CJEU) delivered its judgment on a preliminary reference submitted by the Slovenian Supreme Court, on the difference between refugee and subsidiary protection statuses. The need for a preliminary ruling arose in the context of asylum proceedings, where a minor national of Afghanistan was granted subsidiary protection status, following several unsuccessful legal challenges. When the issue was brought before the Supreme Court of Slovenia, the domestic judges decided to refer a question to the CJEU regarding the admissibility of the applicant’s appeal against his subsidiary protection status in the context of sufficient interest, according to Article 46 (2) of Directive 2013/32/EU. The question was centred on the difference in cessation and duration requirements of the two statuses, as well as the ancillary rights thereof. The Court first noted that the recitals of Directive 2011/95/EU indicate that EU legislators intended to establish an integral framework for all beneficiaries of international protection, save for objectively necessary exceptions for beneficiaries of subsidiary protection status. After analysing the content of Article 47 of the Charter of Fundamental Rights, the Court stated that this article sets a requirement for a restrictive interpretation of any exception from the right to an effective remedy before a court, such as the one introduced by the aforementioned article of Directive 2013/32/EU. As such, for a subsidiary protection beneficiary’s action to be deemed inadmissible due to lack of sufficient interest, the rights and benefits granted must indeed be the same as those the applicant would enjoy if they held refugee status, even if the difference only encompasses ancillary rights. Moreover, a difference between the duration of the two statuses has to be regarded as difference in rights and benefits that justifies an admissible legal challenge. Lastly, any relevant assessment on the existence of different rights and benefits for international protection beneficiaries should not depend on the appellant’s individual situation, but rather on an overall assessment of national legislation. According to the Court’s restrictive interpretation, this is dictated by the text of Article 46 (2), as well as the need for the predictability of this legal provision, which would vary unacceptably according to each applicant’s personal circumstances. ELENA Weekly Legal Update - 19 October 2018

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

The principal issues in the appeals concern the meaning and effect of Article 2(n) and Article 28 of Dublin III ("Article 2(n)" and "Article 28", respectively), which relate to the detention of an individual for the purpose of transfer to another Member State under that Regulation. Mr Hemmati and Mr Khalili also raise a distinct issue regarding whether Garnham J was right to hold that their detention was lawful by application of the usual principles of domestic law first adumbrated in Re Hardial Singh [1984] 1 WLR 704 and rehearsed in later authorities such as R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and Lumba v Secretary of State for the Home Department [2012] 1 AC 245 ("the Hardial Singh principles").

4 October 2018 | Judicial Body: United Kingdom: Court of Appeal (England and Wales) | Legal Instrument: 2013 Dublin III Regulation (EU) | Topic(s): Arbitrary arrest and detention - Prison or detention conditions | Countries: Afghanistan - Austria - Bulgaria - Iran, Islamic Republic of - Iraq - United Kingdom of Great Britain and Northern Ireland

whether MAS, who is lawfully present in the UK, is the brother of MS, an unaccompanied minor who has made an asylum application in France; whether the UK has a duty of investigation once it receives a take charge request and the scope of any such duty

19 July 2018 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Legal Instrument: 2013 Dublin III Regulation (EU) | Topic(s): Family reunification | Countries: Afghanistan - France - United Kingdom of Great Britain and Northern Ireland