The following cases were published as part of the weekly legal update by the European Council on Refugees and Exiles (ECRE).
The European Court of Human Rights (ECHR)
H. and B. v. The United Kingdom (nos. 70073/10 and 44539/11) [Article 3 ECHR]
The applicants are two Afghan nationals who worked, respectively, as a driver for the UN and as an interpreter for the US armed forces in Afghanistan. They applied for asylum in the United Kingdom as they considered themselves at risk of harm from the Taliban, Hizb-i-Islam and the Afghan authorities. Their applications were rejected by the British authorities at several instances. Before the ECHR, they alleged that their deportation to Afghanistan would constitute a breach of Article 3 ECHR. They particularly alleged that their work for the UN and for the US armed forces made them targets for the agents of persecution mentioned above.
The Court rules that the deportation of the applicants to Kabul would not violate Article 3 ECHR. It noted that both applicants did not have a high profiles as workers for the UN and the US and that it did not have sufficient evidence that the Taliban would be able to identify the applicants in Kabul, particularly in view of the fact that they had worked in other provinces and of the passage of time. The Court found that the applicants had not provided sufficient evidence of their alleged exposure to a real risk upon return and that the British authorities had carried out proper and comprehensive assessments of their claims. Therefore, it found no violation of Article 3.
Read the full text of the judgment and a press release at the website of the European Court of Human Rights.
Firoz Muneer v. Belgium (no. 56005/10) [Article 5 ECHR]
The applicant, Mr. Muneer, is an Afghan national who arrived in Belgium in 2009 and applied for asylum. As it appeared that he had been in Greece previously, Belgium arranged for his return under the Dublin regulation. Mr. Muneer was ordered to quit the Belgian territory and placed in a detention centre. His return to Greece was organised, but after he refused to board the plane, a second detention order valid for two months was issued. His appeal against this decision was successful, as the first instance court found that the risk he ran upon return to Greece had not been taken into account. The court ordered his immediate release. This decision was confirmed by an appeals court, which pointed out that the applicant would be at real risk of treatment contrary to Article 3 ECHR if returned to Greece. However, he was kept in detention because the state appealed against this second judgment. The Cassation Court quashed it and ordered the appeals court to decide again, arguing that it had not indicated on what international reports it had based its conclusions about the situation in Greece and that it had not justified the application of ECtHR’s case law to the decision. When adjudicating again upon the question, the appeals court found that the appeal against the detention order had lost its object, as a new detention order had been issued in the meantime extending his detention for another two months. The applicant appealed against this new detention order, and was again successful as the appeals court found that he would risk treatment contrary to Article 3 if he were deported to Greece. At the expiration of the two months, the applicant was released before the Cassation Court could decide on the appeal lodged by the state. Some months afterwards, in December 2010, the applicant introduced a second asylum application and in 2011 he was granted subsidiary protection.
Before the ECtHR, the applicant complained that his continued detention after the first favourable appeals decision and the extension of his detention for an additional two months had been unlawful and contrary to Article 5(1) of the Convention. However, the Court found that it was legitimate to keep the applicant in detention awaiting the decision of the Cassation Court and to extent detention in view of a possible removal. The applicant also invoked Article 5(4) ECHR as he had not had an effective remedy for the review of his detention at his disposal. In this case, the Court found a violation of the Convention, as the applicant never got a final decision concerning the legality of his detention and that hence he did not have a Court review the legality of his detention and to eventually order his release within a brief delay.
Read the full text of the judgment on the website of the European Court of Human Rights.
Court of Justice of the European Union (CJEU)
Opinion of Advocate General Mengozzi in the case C-84/12, Koushkaki v. Federal Republic of Germany, 11 April 2013
The main proceedings concern an Iranian national, Mr. Koushkaki, who applied for a visa to enter Germany for 62 days. His request was turned down because the German authorities were not convinced that his economic situation in Iran would guarantee his willingness to return. Mr. Koushkaki appealed against this refusal before the Administrative Court in Berlin, which found that the applicant indeed complied with all the conditions required by Article 21(1) of the Visa Code and that the only outstanding doubts concerned reasons of public order related to strong migratory pressure from Iran and the risk of illegal immigration, invoked by the German authorities. It referred the following questions to the CJEU:
1. In order for the court to direct the defendant to issue a Schengen visa to the applicant, must the court be satisfied that, pursuant to Article 21(1) of the Visa Code, the applicant intends to leave the territory of the Member State before the expiry of the visa applied for, or is it sufficient if the court, after examining Article 32(1)(b) of the Visa Code, has no doubts based on special circumstances as to the applicant’s stated intention to leave the territory of the Member States before the expiry of the visa applied for?
2. Does the Visa Code establish a non-discretionary right to the issue of a Schengen visa if the entry conditions, in particular those of Article 21(1) of the Visa Code, are satisfied and there are no grounds for refusing the visa pursuant to Article 32(1) of the Visa Code?
3. Does the Visa Code preclude a national provision whereby a foreigner may, in accordance with Regulation (EC) No 810/2009, be issued with a visa for transit through or an intended stay in the territory of the Schengen States of no more than three months within a six-month period from the date of first entry (Schengen visa)?
Advocate General Mengozzi proposes the following responses to the CJEU:
1. In the sense of Article 21(1) of Regulation (EC) No 810/2009 of the European Parliament and the Council of 13 July 2009 establishing a Community Code on Visas, read in conjunction with Article 32(1)(b) thereof, in order to be able to reject an application for a visa on grounds of the applicant’s non-intention to return, national authorities dealing with the examination of the application need to have reasonable doubts concerning the applicant’s real intentions of return, after having taken into account all the elements necessary to guarantee an objective evaluation. These include elements related to the situation in the country of origin as well as those related to the applicant’s particular situation and to the documents provided by him.
2. Regulation 810/2009 may not be interpreted as recognising applicants an individual right to the issue of a Schengen visa. However, said Regulation imposes on Member States the obligation to decide on applications for Schengen visas after having evaluated the situation as a whole, taking due account of the conditions allowing for the effectiveness of the visa in all states participating in the Schengen Area, as well as of the personal and human context of the individual circumstances underlying each application, and as the result of a process which fully respects fundamental rights, and human dignity first and foremost, carried out in accordance with the principles of proportionality and non-discrimination.
Read the full text of the Opinion (not available in English) here.
New reference on reception conditions directive: Case C-79/13 Saciri and others
The Belgian Arbeidshof te Brussel referred on February the following questions concerning the reception conditions directive to the CJEU for a preliminary ruling:
1. When a Member State elects, pursuant to Article 13(5) of Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers, to provide the material support in the form of a financial allowance, does the Member State then still have any responsibility to ensure that the asylum applicant, in one way or another, enjoys the minimum protection measures of the Directive as contained in Articles 13(1), 13(2), 14(1), 14 (3), 14(5) and 14(8) of the Directive?
2. Should the financial allowance, provided for by Article 13(5) of the Directive, be granted from the date of the application for asylum and the reception request, or from the expiry of the period provided for in Article 5(1) of the Directive, or from another date. Should the financial allowance be of such a nature that it allows the asylum seeker, in the absence of material reception facilities provided by the Member State or by an institution designated by the Member State, to provide for his own accommodation at all times, if necessary in the form of hotel accommodation, until such time as he is offered permanent accommodation or as he is able to acquire more permanent accommodation himself?
3. Is it compatible with the Directive that a Member State only grants the material reception facilities to the extent that the existing reception structures, as established by the State, are able to ensure that accommodation, and refers the asylum seeker who does not find place there for assistance which is available to all the residents of the State, without providing for the necessary statutory rules and structures so that institutions which have not been established by the State itself are effectively able to extend a dignified reception to the asylum applicants within a short period?
Information on this reference is available at the CJEU’s website.