FRA/E
CtHR
HANDBOOK
H
andbook o
n Eu
ropean law r
elating t
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sylum, borders a
nd i
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Handbook on European law
m
igrat
relating to asylum, borders
ion
and immigration
© European Union Agency for Fundamental Rights, 2013
Council of Europe, 2013
The manuscript for this Handbook was completed in April 2013.
Updates will become available in future on the FRA website at:
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: echr.coe.int.
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This handbook was drafted in English. The European Court of Human Rights (ECtHR) takes no responsibility
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Handbook on European law
relating to asylum, borders
and immigration
Foreword
In March 2011, as a result of their first joint project, the European Union Agency for
Fundamental Rights and the European Court of Human Rights launched a handbook
on European law in the field of non-discrimination. Following the positive feedback
received, it was decided to pursue this collaboration in another very topical area
where equally there was felt to be a need for a comprehensive guide to the case
law of the European Court of Human Rights, the Court of Justice of the European
Union as well as to relevant EU regulations and directives. The present handbook
seeks to provide an overview of the various European standards relevant to asylum,
borders and immigration.
The handbook is intended for lawyers, judges, prosecutors, border guards,
immigration officials and others working with national authorities, as well as non-
governmental organisations and other bodies that may be confronted with legal
questions in any of the areas the handbook sets out to cover.
With the entry into force of the Lisbon Treaty in December 2009, the Charter of
Fundamental Rights of the European Union became legally binding. The Lisbon
Treaty also provides for EU accession to the European Convention on Human Rights,
which is legally binding on all member states of the EU and the Council of Europe.
Improving the understanding of common principles developed in the case law of
the two European courts, and in EU regulations and directives is essential for the
proper implementation of relevant standards, thereby ensuring the full respect of
fundamental rights at national level. It is our hope that this handbook will serve to
further this important objective.
Erik Fribergh
Morten Kjaerum
Registrar of the European Court
Director of the European Union Agency
of Human Rights
for Fundamental Rights
3
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CONTENTS
FOREWORD ..................................................................................................................... 3
HOW TO USE THIS HANDBOOK ..................................................................................... 11
INTRODUCTION ............................................................................................................. 15
The Council of Europe ........................................................................................... 15
The European Union ............................................................................................ 17
The Charter of Fundamental Rights of the EU ................................................... 20
European Union accession to the European Convention on Human Rights .....22
Key points .............................................................................................................23
1.
ACCESS TO THE TERRITORY AND TO PROCEDURES ................................................25
Introduction .......................................................................................................... 26
1.1. The Schengen visa regime ......................................................................... 27
1.2. Preventing unauthorised entry ..................................................................30
1.3. Entry bans and Schengen alerts ................................................................ 30
1.4. Border checks .............................................................................................. 33
1.5. Transit zones ................................................................................................34
1.6. Asylum seekers ........................................................................................... 35
1.7. Push backs at sea ........................................................................................36
1.8. Remedies .....................................................................................................38
Key points ............................................................................................................. 39
2.
STATUS AND ASSOCIATED DOCUMENTATION ........................................................ 41
Introduction .......................................................................................................... 42
2.1. Asylum seekers ........................................................................................... 43
2.2. Recognised refugees and those recognised as being
in need of subsidiary protection ................................................................44
2.3. Victims of trafficking and of particularly exploitative
labour conditions ........................................................................................ 45
2.4. Persons affected by Rule 39 interim measures ........................................ 47
2.5. Migrants in an irregular situation .............................................................. 47
2.6. Long-term residents....................................................................................50
2.7. Turkish citizens ............................................................................................ 52
2.8. Third-country nationals who are family members
of EEA or Swiss nationals ............................................................................54
2.9. Stateless persons and the loss of citizenship or documentation ............ 55
Key points ............................................................................................................. 57
5
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3.
ASYLUM DETERMINATION AND BARRIERS TO REMOVAL: SUBSTANTIVE ISSUES ...... 59
Introduction .......................................................................................................... 61
3.1. The right to asylum and the principle of non-refoulement .................... 61
3.1.1. The nature of the risk under EU law ............................................................. 64
3.1.2. The nature of the risk under the ECHR ......................................................... 67
3.1.3. Assessment of risk ......................................................................................... 71
3.1.4. Sufficiency of protection .................................................................................74
3.1.5. Internal relocation .......................................................................................... 77
3.1.6. Safety elsewhere ........................................................................................... 78
3.1.7. Exclusion from international protection ....................................................... 80
3.1.8. Cessation of international protection ........................................................... 81
3.2. Collective expulsion .................................................................................... 82
3.3. Barriers to expulsion based on other human rights grounds .................84
3.4. Third-country nationals who enjoy a higher degree of
protection from removal ............................................................................86
3.4.1. Long-term residents ....................................................................................... 86
3.4.2. Third-country national family members of EEA and Swiss nationals ........ 86
3.4.3. Turkish nationals ............................................................................................ 87
Key points .............................................................................................................89
4.
PROCEDURAL SAFEGUARDS AND LEGAL SUPPORT IN
ASYLUM AND RETURN CASES ............................................................................... 91
Introduction .......................................................................................................... 92
4.1. Asylum procedures ..................................................................................... 92
4.1.1. Interview, examination procedure and initial decision making ................ 93
4.1.2. Right to an effective remedy ........................................................................ 95
4.1.3. Appeals with automatic suspensive effect .................................................. 97
4.1.4. Accelerated asylum procedures .................................................................. 100
4.2. Dublin procedures ..................................................................................... 101
4.3. Procedures relating to reception conditions of asylum seekers ...........104
4.4. Return procedures .....................................................................................104
4.5. Legal assistance in asylum and return procedures ...............................106
4.5.1. Legal assistance in asylum procedures ..................................................... 108
4.5.2. Legal assistance in return decisions ........................................................... 109
4.5.3. Legal assistance to challenge asylum support decisions ......................... 109
Key points ........................................................................................................... 110
5.
PRIVATE AND FAMILY LIFE AND THE RIGHT TO MARRY ...................................... 111
Introduction ........................................................................................................ 112
5.1. The right to marry and to found a family ............................................... 114
6
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5.2. Family regularisation ................................................................................ 117
5.3. Family reunification .................................................................................. 124
5.4. Maintaining the family – protection from expulsion ............................. 128
5.4.1. Relationship breakdown ............................................................................. 129
5.4.2. Criminal convictions .................................................................................... 130
Key points ........................................................................................................... 133
6.
DETENTION AND RESTRICTIONS TO FREEDOM OF MOVEMENT ........................... 135
Introduction ........................................................................................................ 137
6.1. Deprivation of liberty or restriction on the freedom of movement? ... 138
6.2. Alternatives to detention ......................................................................... 140
6.3. Exhaustive list of exceptions to the right to liberty ............................... 141
6.3.1. Detention to prevent an unauthorised entry into the country ................ 144
6.3.2. Detention pending deportation or extradition .......................................... 145
6.4. Prescribed by law ...................................................................................... 147
6.5. Necessity and proportionality ..................................................................148
6.6. Arbitrariness .............................................................................................. 149
6.6.1. Good faith ..................................................................................................... 150
6.6.2. Due diligence ................................................................................................ 151
6.6.3. Realistic prospect of removal ...................................................................... 151
6.6.4. Maximum length of detention .................................................................... 153
6.7. Detention of individuals with specific needs .......................................... 154
6.8. Procedural safeguards .............................................................................. 155
6.8.1. Right to be given reasons ............................................................................ 156
6.8.2. Right to review of detention ....................................................................... 157
6.9. Detention conditions or regimes ............................................................. 158
6.10. Compensation for unlawful detention ....................................................160
Key points ........................................................................................................... 161
7.
FORCED RETURNS AND MANNER OF REMOVAL .................................................. 163
Introduction ........................................................................................................164
7.1. Carrying out removal: safe, dignified and humane ............................... 165
7.2. Confidentiality ...........................................................................................166
7.3. Serious harm caused by restraint measures ...........................................166
7.4. Investigations ............................................................................................ 169
Key points ........................................................................................................... 170
8.
ECONOMIC AND SOCIAL RIGHTS .......................................................................... 171
Introduction ........................................................................................................172
8.1. Main sources of law .................................................................................. 173
8.2. Economic rights ......................................................................................... 176
7
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8.2.1. Family members of EEA and Swiss nationals ............................................ 178
8.2.2. Posted workers ............................................................................................. 179
8.2.3. Blue Card holders, researchers and students ............................................ 179
8.2.4. Turkish citizens ............................................................................................. 180
8.2.5. Long-term residents and beneficiaries of the Family
Reunification Directive ................................................................................. 182
8.2.6. Nationals of other countries with association or
cooperation agreements ............................................................................. 182
8.2.7. Asylum seekers and refugees ..................................................................... 185
8.2.8. Migrants in an irregular situation ............................................................... 186
8.3. Education ................................................................................................... 187
8.4. Housing ......................................................................................................190
8.5. Healthcare ................................................................................................. 195
8.6. Social security and social assistance ....................................................... 198
Key points ...........................................................................................................202
9.
PERSONS WITH SPECIFIC NEEDS ..........................................................................205
Introduction ........................................................................................................206
9.1. Unaccompanied minors ............................................................................206
9.1.1. Reception and treatment ........................................................................... 207
9.1.2. Age assessment ........................................................................................... 210
9.2. Victims of human trafficking .................................................................... 210
9.3. Persons with disabilities ........................................................................... 212
9.4. Victims of torture and other serious forms of violence ......................... 213
Key points ........................................................................................................... 215
FURTHER READING ..................................................................................................... 217
ONLINE SOURCES........................................................................................................223
LIST OF CASES .............................................................................................................225
HOW TO FIND CASE LAW OF THE EUROPEAN COURTS ...............................................237
ANNEX 1: APPLICABILITY OF EU REGULATIONS AND DIRECTIVES
CITED IN THIS HANDBOOK ........................................................................ 242
ANNEX 2: APPLICABILITY OF SELECTED COUNCIL OF EUROPE INSTRUMENTS ...........246
ANNEX 3: ACCEPTANCE OF ESC PROVISIONS .............................................................248
ANNEX 4: ACCEPTANCE OF SELECTED UN CONVENTIONS ..........................................251
ANNEX 5: COUNTRY CODES ........................................................................................253
8
Acronyms
CAT
United Nations Convention Against Torture
CJEU
Court of Justice of the European Union (prior to December 2009,
European Court of Justice)
CoE
Council of Europe
CRC
United Nations Convention on the Rights of the Child
CRPD
United Nations Convention on the Rights of Persons with Disabilities
CPT
European Committee for the Prevention of Torture and Inhuman and
Degrading Treatment or Punishment
EASO
European Asylum Support Office
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
ECJ
European Court of Justice (since December 2009, Court of Justice of
the European Union)
ECSR
European Committee of Social Rights
EEA
European Economic Area
EEA nationals Nationals of one of the 27 EU Member States, Iceland, Liechtenstein
or Norway
EEC
European Economic Community
EFTA
European Free Trade Association
ESC
European Social Charter
EU
European Union
FRA
European Union Agency for Fundamental Rights
Frontex
European Agency for the Management of Operational Cooperation
at the External Borders of the Member States of the European Union
ICCPR
International Covenant on Civil and Political Rights
ICESCR
International Covenant on Economic, Social and Cultural Rights
9
PACE
Parliamentary Assembly of the Council of Europe
RABIT
Rapid Border Intervention Teams
SAR
Search and Rescue
SIS
Schengen Information System
SOLAS
Safety of Life at Sea
TEU
Treaty on European Union
TFEU
Treaty on the Functioning of the European Union
UN
United Nations
UNHCR
United Nations High Commissioner for Refugees
UNMIK
United Nations Interim Administration Mission in Kosovo
UNRWA
United Nations Relief and Works Agency for Palestine Refugees in
the Near East
10
How to use this handbook
This handbook provides an overview of the law applicable to asylum, border man-
agement and immigration in relation to European Union (EU) law and the European
Convention on Human Rights (ECHR). It looks at the situation of those foreigners
whom the EU usually refers to as third-country nationals, although such distinction
is not relevant for cited ECHR law.
The handbook does not cover the rights of EU citizens, or those of citizens of Iceland,
Liechtenstein, Norway and Switzerland who, under EU law, can enter the territory
of the EU freely and move freely within it. Reference to such categories of citizens
will be made only where necessary in order to understand the situation of family
members who are third-country nationals.
There are, under EU law, some 20 different categories of third-country nationals,
each with different rights that vary according to the links they have with EU Mem-
ber States or that result from their need for special protection. For some, such as
asylum seekers, EU law provides a comprehensive set of rules, whereas for others,
such as students, it only regulates some aspects while leaving other rights to EU
Member States’ discretion. In general, third-country nationals who are allowed to
settle in the EU are typically granted more comprehensive rights than those who
stay only temporarily. Table 1 provides a broad overview of the various categories
of third-country nationals under EU law.
This handbook is designed to assist legal practitioners who are not specialised in
the field of asylum, borders and immigration law; it is intended for lawyers, judges,
prosecutors, border guards, immigration officials and others working with national
authorities, as well as non-governmental organisations (NGOs) and other bodies
that may be confronted with legal questions relating to these subjects. It is a first
point of reference on both EU and ECHR law related to these subject areas, and
explains how each issue is regulated under EU law as well as under the ECHR, the
European Social Charter (ESC) and other instruments of the Council of Europe. Each
chapter first presents a single table of the applicable legal provisions under the two
separate European legal systems. Then the relevant laws of these two European or-
ders are presented one after the other as they may apply to each topic. This allows
the reader to see where the two legal systems converge and where they differ.
Practitioners in non-EU states that are member states of the Council of Europe
and thereby parties to the ECHR can access the information relevant to their own
11
Handbook on European law relating to asylum, borders and immigration
country by going straight to the ECHR sections. Practitioners in EU Member States
will need to use both sections as those states are bound by both legal orders. For
those who need more information on a particular issue, a list of references to more
specialised material can be found in the ‘Further reading’ section of the handbook.
ECHR law is presented through short references to selected European Court of
Human Rights (ECtHR) cases related to the handbook topic being covered. These
have been chosen from the large number of ECtHR judgments and decisions on
migration issues that exist.
EU law is found in legislative measures that have been adopted, in relevant
provisions of the Treaties and in particular in the Charter of Fundamental Rights
of the European Union, as interpreted in the case law of the Court of Justice of the
European Union (CJEU, otherwise referred to, until 2009, as the European Court of
Justice (ECJ)).
The case law described or cited in this handbook provides examples of an important
body of both ECtHR and CJEU case law. The guidelines at the end of this handbook
are intended to assist the reader in searching for case law online.
Not all EU Member States are bound by all the different pieces of EU legislation
in the field of asylum, border management and immigration. Annex 1 on the
‘Applicability of EU directives cited in this handbook’ provides an overview of which
states are bound by which provisions. It also shows that Denmark, Ireland and the
United Kingdom have most frequently opted out of the instruments listed in this
handbook. Many EU instruments concerning borders, including the Schengen
acquis – meaning all EU law adopted in this field – and certain other EU law instruments,
also apply to some non-EU Member States, namely Iceland, Liechtenstein, Norway
and/or Switzerland.
While all Council of Europe member states are party to the ECHR, not all of them
have ratified or acceded to all of the ECHR Protocols or are State Party to the other
Council of Europe conventions mentioned in this handbook. Annex 2 provides an
overview of the applicability of the relevant Protocols to the ECHR.
Substantial differences also exist among the states which are party to the ESC.
States joining the ESC system are allowed to decide whether to sign up to individual
articles, although subject to certain minimum requirements. Annex 3 provides an
overview of the acceptance of ESC provisions.
12
How to use this handbook
The handbook does not cover international human rights law or refugee law, except
to the extent that this has been expressly incorporated into ECHR or EU law. This
is the case with the 1951 Geneva Convention relating to the Status of Refugees
(1951 Geneva Convention), which is expressly referred to in Article 78 of the Treaty
on the Functioning of the European Union (TFEU). European states remain, of course,
bound by all treaties to which they are party. The applicable international instru-
ments are listed in Annex 4.
The handbook includes an introduction, which briefly explains the role of the two
legal systems as established by ECHR and EU law, and nine chapters covering the
following issues:
• access to the territory and to procedures;
• status and associated documentation;
• asylum determination and barriers to removal: substantive issues;
• procedural safeguards and legal support in asylum and return cases;
• private and family life and the right to marry;
• detention and restrictions on the freedom of movement;
• forced returns and manner of removal;
• economic and social rights;
• persons with specific needs.
Each chapter covers a distinct subject while cross-references to other topics and
chapters provide a fuller understanding of the applicable legal framework. Key
points are presented at the end of each chapter.
13
Handbook on European law relating to asylum, borders and immigration
Table 1: Categories of third-country nationals under EU law
Persons with rights
derived from EU free
Family members of citizens of EU Member States
movement provisions
Persons with rights
Family members of citizens of the European
derived from
Economic Area (EEA) and Switzerland
international agreements
Turkish citizens and their family members
Citizens of countries which have concluded
bilateral or multilateral agreements with the EU
(some 25 agreements covering 103 countries)
Short- and
Family members of third-country national sponsors
long-term immigrants
Long-term residents in the EU
Blue Card holders and their family members
Posted workers
Researchers
Students
Seasonal workers
Intra-corporate transferees
Persons in need of protection
Asylum seekers
Beneficiaries of subsidiary protection
Beneficiaries of temporary protection
Refugees
Victims of human trafficking
Migrants in an
Illegally-staying third-country nationals
irregular situation
Illegally-staying third-country nationals
whose removal has been postponed
Note: Italics added to any EU legislation on categories still pending as at December 2012.
Source: FRA, 2012
14
Introduction
This introduction will briefly explain the roles of the two European legal orders reg-
ulating migration. References to Council of Europe legal system will primarily relate
to the ECHR and the case law developed by the ECtHR, except for Chapter 8, which
also presents the ESC. EU law is mainly presented through the relevant regulations
and directives and in the provisions of the EU Charter of Fundamental Rights.
The Council of Europe
The Council of Europe was formed in the aftermath of the Second World War to
bring together the states of Europe to promote the rule of law, democracy, human
rights and social development. For this purpose, it adopted the ECHR in 1950. The
ECtHR – and the former European Commission of Human Rights – was set up under
Article 19 of the ECHR to ensure that states observed their obligations under the
Convention. The ECtHR does this by considering complaints from individuals, groups
of individuals, non-governmental organisations or legal persons alleging violations
of the Convention. As at April 2013, the Council of Europe comprised 47 member
states, 27 (28 from 1 July 2013 onwards) of these being also members of the EU. An
applicant before the ECtHR is not required to be a citizen or a lawful resident of one
of those 47 member states, except for some specific provisions. The ECtHR can also
examine inter-state cases brought by one or more Council of Europe member states
against another member state.
The ECHR contains few provisions expressly mentioning foreigners or limiting
certain rights to nationals or lawful residents (for example, Articles 2, 3 and 4 of
Protocol 4 to the ECHR and Article 1 of Protocol 7). Migration issues have generated
15
Handbook on European law relating to asylum, borders and immigration
a vast body of case law from the ECtHR, a selection of which is presented as
examples in this handbook. They mainly relate to Articles 3, 5, 8 and 13 of the ECHR.
Article 1 of the ECHR requires states to “secure” the Convention rights to “every-
one within their jurisdiction”. This includes foreigners; in certain specific cases, the
concept of jurisdiction can extend beyond the territory of a state. A State Party to
the ECHR is responsible under Article 1 of the ECHR for all acts and omissions of its
organs regardless of whether the act or omission in question was a consequence
of domestic law or of the necessity to comply with international legal obligations.1
Article 13 of the ECHR requires states to provide a national remedy for complaints
made under the Convention. The principle of subsidiarity places the primary respon-
sibility on states to ensure their compliance with obligations under the ECHR, leav-
ing recourse to the ECtHR as a last resort.
States have an international obligation to ensure that their officials comply with the
ECHR. All Council of Europe member states have now incorporated or given effect
to the ECHR in their national law, which requires their judges and officials to act in
accordance with the provisions of the Convention.
The provisions of the Council of Europe’s ESC, adopted in 1961 and revised in 1996,
complement the ECHR provisions in relation to social rights. As at April 2013, 43 out
of the 47 Council of Europe member states had ratified the ESC.2 The ESC does not
provide for a court, but does have the European Committee of Social Rights (ECSR),
which is composed of independent experts who rule on the conformity of national
law and practice within the framework of two procedures: the reporting procedure
under which states submit national reports with regular intervals; and the collective
complaints procedure,3 which allows organisations to lodge complaints. The ECSR
adopts conclusions in respect of national reports and adopts decisions in respect of
collective complaints. Some of its conclusions and decisions are mentioned in this
handbook.
1
ECtHR
, Matthews v. the United Kingdom [GC], No. 24833/94, ECHR 1999-I, para. 32; ECtHR
, Bosphorus
Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], No. 45036/98, ECHR 2005-VI, para. 153.
2
Thirty-two states are bound by the 1996 revised ESC and 11 by the 1961 Charter. The ESC offers the
possibility to State Parties to sign up to specific provisions only. Annex 3 provides an overview of the
applicability of ESC provisions.
3
The complaints procedure is optional (as opposed to the reporting procedure) and, as at October 2012,
had been accepted by 15 states that are party to the ESC.
16
Introduction
The European Union
The EU comprises 27 Member States, with Croatia due to join on 1 July 2013. EU
law is composed of treaties and secondary EU law. The treaties, namely the Treaty
on European Union (TEU) and the Treaty on the Functioning of the European Union
(TFEU), have been approved by all EU Member States and are also referred to as ‘pri-
mary EU law’. The regulations, directives and decisions of the EU have been adopted
by the EU institutions that have been given such authority under the treaties; they
are often referred to as ‘secondary EU law’.
The EU has evolved from three international organisations established in the 1950s
that dealt with energy, security and free trade; collectively, they were known as
the European Communities. The core purpose of the European Communities was
the stimulation of economic development through the free movement of goods,
capital, people and services. The free movement of persons is thus a core element
of the EU. The first regulation on the free movement of workers in 19684 recognised
that workers must not only be free to move, but also able to take their family mem-
bers – of whatever nationality – with them. The EU has developed an accompany-
ing body of complex legislation on the movement of social security entitlements,
on social assistance rights and on healthcare as well as provisions relating to the
mutual recognition of qualifications. Much of this law which was developed for EU
nationals primarily also applies tow various categories of non-EU nationals.
Nationals of non-EU Member States – namely of Iceland, Liechtenstein and Norway –
that are part of the European Economic Area (EEA), which entered into force in 1994,
have the same free movement rights as EU nationals.5 Similarly, based on a special
agreement concluded with the EU on 21 June 1999,6 Swiss nationals enjoy a right to
move and settle in the EU. The EU and EEA states, together with Switzerland, are all
members of the European Free Trade Association (EFTA), which is an intergovern-
mental organisation set up for the promotion of free trade and economic integra-
tion. EFTA has its own institutions, including a court. The EFTA Court is competent to
interpret the EEA Agreement with regard to Iceland, Liechtenstein and Norway. It is
modelled on the CJEU and tends to follow its case law.
4
Commission Regulation (EEC) No. 1612/68, 15 October 1968.
5
Agreement on the European Economic Area, 2 May 1992, Part III, Free Movement of Persons, Services
and Capital, OJ 1994 L1.
6
Agreement between the European Community and its Member States, on the one part, and the Swiss
Confederation, on the other, on the free movement of persons, signed in Luxembourg on 21 June 1999,
entered into force on 1 June 2002, OJ 2002 L 114/6.
17
Handbook on European law relating to asylum, borders and immigration
Turkish citizens may also have a privileged position under EU law. They do not have
the right to freedom of movement into or within the EU. However, in 1963 the Eu-
ropean Economic Community (EEC)-Turkey Association Agreement (the Ankara
Agreement) was concluded with Turkey and an additional protocol was adopted
in 1970 (‘Additional Protocol to the Ankara Agreement’).7 As a result, those Turkish
citizens who are permitted to enter the EU to work or establish themselves enjoy
certain privileges, have the right to remain and are protected from expulsion. They
also benefit from a standstill clause in Article 41 of the Additional Protocol to the
Ankara Agreement, which prevents them from being subjected to more restrictions
than those which were in place at the time at which the clause came into effect for
the host Member State. The EU has also concluded agreements with several other
countries (see Chapter 8, Section 8.2.6), but none of those are as wide-ranging as
the Ankara Agreement.
The Treaty of Maastricht entered into force in 1993 and created citizenship of the
Union, although predicated on possessing the citizenship of one of the EU Member
States. This concept has been widely used to buttress freedom of movement for
citizens and their family members of any nationality.
In 1985, the Schengen Agreement was signed, which led to the abolition of internal
border controls of participating EU Member States. By 1995, a complex system for
applying external controls was put in place, regulating access to the Schengen
area. In 1997, the Schengen system – regulated thus far at an international level –
became part of the EU legal order. It continues to evolve and develop in the context
of the
Schengen Borders Code, which consolidates EU rules relating to border
management. In 2004, the EU agency Frontex was created to assist EU Member
States in the management of the external borders of the Union.
Since the Treaty of Rome in 1950, successive treaty amendments have enlarged
the competence of the European Communities (EC), now the EU, in issues affecting
migration; the Treaty of Amsterdam gave the EU new competence across the field
of borders, immigration and asylum, including visas and returns. This process culmi-
nated with the Treaty of Lisbon which afforded the EU new competence in the field
of integration of third-country nationals.
7
EEC-Turkey Association Agreement (1963), OJ No. 217 of 29 December 1964 (Ankara Agreement), which
was supplemented b
y an Additional Protocol signed in November 1970, OJ 1972 L293.
18
Introduction
Against this background, there has been an ongoing evolution of the EU asylum
acquis, a body of intergovernmental agreements, regulations and directives that
governs almost all asylum-related matters in the EU. Not all EU Member States,
however, are bound by all elements of the asylum
acquis. As at April 2013, several
instruments of the
acquis were in the process of being revised, with several EU
Member States not accepting the revisions (see Annex 1).
Over the past decade, the EU has adopted legislation concerning immigration to the
EU for certain categories of persons as well as rules on third-country nationals resid-
ing lawfully within the Union (see Annex 1).
Under the EU treaties, the EU established its own court, which was known as the
European Court of Justice (ECJ) until the entry into force of the Treaty of Lisbon in De-
cember 2009; since then, it has been renamed the Court of Justice of the European
Union (CJEU).8 The CJEU is entrusted with a number of competences. On the one
hand, the Court has the right to decide over the validity of EU acts and over failures
to act by the EU institutions under EU and relevant international law, as well as to
decide over infringements of EU law by EU Member States. On the other hand, the
CJEU retains an exclusive competence in ensuring the correct and uniform applica-
tion and interpretation of EU law in all EU Member States. Pursuant to Article 263 (4)
of the TFEU, access to the CJEU by individuals is relatively narrow.9
However, individual complaints having as an object the interpretation or the validity
of EU law can always be brought before national courts. The judicial authorities of
EU Member States, based on the duty of sincere cooperation and the principles that
rule effectiveness of EU law at national level, are entrusted with the responsibility
to ensure that EU law is correctly applied and enforced in the national legal system.
In addition, following the ECJ ruling in the
Francovich case,10 EU Member States
are required, under certain conditions, to provide redress, including compensation
in appropriate cases for those who have suffered as a consequence of a Member
State’s failure to comply with EU law. In case of doubt on the interpretation or
8
This handbook refers to the ECJ for decisions and judgments issued prior to December 2009 and to the
CJEU for cases ruled on since December 2009.
9
This, for example, was the case in ECJ, Joined Cases C-402/05 P and C-415/05 P [2008] I-6351,
Kadi and
Al Barakaat International Foundation v. Council of the European Union and Commission of the European
Communities, 3 September 2008.
10 ECJ, Joined Cases C-6/90 and C-9/90 [1991] ECR I-05357
, Francovich and Bonifaci and Others v. Italian
Republic, 19 November 1991; ECJ, Case C-479/93 [1995] ECR I-03843, 9 November 1995.
19
Handbook on European law relating to asylum, borders and immigration
the validity of an EU provision, national courts can – and must in certain cases11 –
seek guidance from the CJEU using the preliminary reference procedure under
Article 267 of the TFEU. In the area of freedom, security and justice, the urgent
preliminary ruling procedure (PPU) was created to ensure a quick ruling in cases
pending before any national court or tribunal with regard to a person in custody.12
The Charter of Fundamental Rights of the EU
The original treaties of the European Communities did not contain any reference to
human rights or their protection. However, as cases came before the ECJ alleging
human rights breaches occurring in areas within the scope of EU law, the ECJ devel-
oped a new approach to grant protection to individuals by including fundamental
rights in the so-called ‘general principles’ of European law. According to the ECJ,
these general principles would reflect the content of human rights protection found
in national constitutions and human rights treaties, in particular the ECHR. The ECJ
stated that it would ensure compliance of EU law with these principles.13
In recognising that its policies could have an impact on human rights and in an ef-
fort to make citizens feel ‘closer’ to the EU, the EU proclaimed the Charter of Funda-
mental Rights of the European Union in 2000. The Charter contains a list of human
rights inspired by the rights enshrined in EU Member State constitutions, the ECHR,
the ESC and international human rights treaties, such as the United Nations (UN)
Convention on the Rights of the Child (CRC). The EU Charter of Fundamental Rights
as proclaimed in 2000 was merely a ‘declaration’, meaning it was not legally bind-
ing. The European Commission, the primary body for proposing new EU legislation,
11 According to Art. 267 (3), such obligation always arises for courts against whose decisions there is no
judicial remedy under national law and concern also other courts whenever a preliminary reference
concerns the validity of an EU provision and there are grounds to consider that the challenge is founded
(see, for example, ECJ, Case 314/85 [1987] ECR 4199,
Foto-Frost, 22 October 1987).
12 See Statute of the Court of Justice, Protocol No. 3, Art. 23 a and Rules of Procedure of the Court of
Justice, Arts. 107-114. For a better overview of cases that might be subjected to a PPU, see CJEU,
Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling
proceedings (2012/C 338/01), 6 November 2012, para. 40: “
for example, consider submitting
a request for the urgent preliminary ruling procedure to be applied in the case, referred to in the fourth
paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to
the question raised is decisive as to the assessment of that person’s legal situation, or in proceedings
concerning parental authority or custody of children, where the identity of the court having jurisdiction
under European Union law depends on the answer to the question referred for a preliminary ruling”.
13 ECJ, Case C-44/79 [1979] ECR 3727
, Liselotte Hauer v. Land Rheinland-Pfalz, 13 December 1979,
para. 15.
20
Introduction
soon thereafter stated that it would ensure compliance of legislative proposals with
the Charter.
When the Treaty of Lisbon entered into force on 1 December 2009, it altered the sta-
tus of the EU Charter of Fundamental Rights, making it legally binding. As a result,
EU institutions (as well as EU Member States) are bound to comply with the Charter
“when implementing EU law” (Article 51 of the Charter).
A Protocol has been adopted interpreting the Charter in relation to Poland and the
UK. In a 2011 migration case before the CJEU, the Court held that the main purpose
of such Protocol was to limit the application of the Charter in the field of social
rights. The Court furthermore held that the Protocol does not affect the implemen-
tation of EU asylum law.14
Article 18 of the EU Charter of Fundamental Rights contains – for the first time at
European, level – a right to asylum. According to Article 18, it is a qualified right:
“[t]he right to asylum shall be guaranteed with due respect for the rules of the
Geneva Convention [...] and in accordance with the Treaty on European Union and
the Treaty on the Functioning of the European Union […].” Article 19 of the Charter
includes a prohibition to return a person to a situation where he or she has a well-
founded fear of being persecuted or runs a real risk of torture or inhuman and de-
grading treatment or punishment (principle of
non-refoulement).
Moreover, other Charter provisions on the protection granted to individuals appear
to be relevant in the context of migration. Article 47 of the Charter provides for an
autonomous right to an effective remedy and lays down fair trial principles. The
principle of judicial review enshrined in Article 47 requires a review by a tribu-
nal. This provides broader protection than Article 13 of the ECHR which guarantees
the right to an effective remedy before a national authority that is not necessarily
a court. Furthermore, Article 52 of the EU Charter of Fundamental Rights stipulates
that the minimum protection afforded by the Charter provisions are those provided
by the ECHR; the EU may nevertheless apply a more generous interpretation of the
rights than that put forward by the ECtHR.
14 CJEU, Joined Cases C-411/10 and C-493/10
, N.S. v. Secretary of State for the Home Department and M.E.
and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform,
21 December 2011.
21
Handbook on European law relating to asylum, borders and immigration
European Union accession to the European
Convention on Human Rights
EU law and the ECHR are closely connected. The CJEU looks to the ECHR for inspira-
tion when determining the scope of human rights protection under EU law. The EU
Charter of Fundamental Rights reflects the range of rights provided for by the ECHR,
although it is not limited to these rights. Accordingly, EU law has largely developed
in line with the ECHR although the EU is not yet a signatory to the ECHR. According
to the law as it currently stands, however, individuals wishing to complain about
the EU and its failure to guarantee human rights are not entitled to bring an appli-
cation against the EU as such before the ECtHR. Under certain circumstances, it may
be possible to complain indirectly about the EU by bringing an action against one or
more EU Member States before the ECtHR.15
The Lisbon Treaty contains a provision mandating the EU to join the ECHR as a party
in its own right and Protocol 14 to the ECHR amends the ECHR to allow this acces-
sion to take place. It is not yet clear what effect this will have in practice and, in
particular, how this will influence the relationship between the CJEU and ECtHR in
the future. The EU’s accession to the ECHR is, however, likely to improve access to
justice for individuals who consider that the EU has failed to guarantee their human
rights. The negotiations for the EU’s accession to the ECHR are ongoing and may
take several years.
15 For more details on ECtHR case law in this complex area, see, in particular, ECtHR,
Bosphorus Hava
Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], No. 45036/98, 30 June 2005.
22
Introduction
Key points
•
Migration into and within Europe is regulated by a combination of national law,
EU law, the ECHR, the ESC and by other international obligations entered into by
European states.
•
Complaints against acts or omissions by a public authority violating the ECHR may
be brought against any of the 47 Member States of the Council of Europe. These
include all 27 (soon to be 28) EU Member States. The ECHR protects all individuals
within the jurisdiction of any of its 47 states, regardless of their citizenship or
residence status.
•
Article 13 of the ECHR requires states to provide a national remedy for complaints
under the Convention. The principle of subsidiarity, as understood in the ECHR
context, places the primary responsibility for ensuring compliance with the ECHR on
the states themselves, leaving recourse to the ECtHR as a last resort.
•
Complaints against acts or omissions by an EU Member State violating EU law can
be brought to national courts, which are under an obligation to ensure that EU law
is correctly applied and may – and sometimes must – refer the case to the CJEU
for a preliminary ruling on the interpretation or the validity of the EU provision
concerned.
23
1
Access to the territory
and to procedures
EU
Issues covered
CoE
Convention implementing
Schengen visa
the 1985 Schengen
regime
Agreement, 19 June 1990
Visa List Regulation, Regulation 539/2001
Visa Code, Regulation 810/2009
Carrier Sanctions Directive, 2001/51/EC
Preventing
Facilitation Directive, 2002/90/EC
unauthorised entry
Schengen Information System (SIS), set
Entry ban/
ECHR, Article 2 of Protocol
up by Title IV of the 1985 Convention
Schengen alert
No. 4 (freedom of
implementing the Schengen Agreement
movement)
SIS II Regulation,
Regulation 1987/2006 and SIS II Decision,
Council Decision 2007/533/JHA
Return Directive,
2008/115/EC, Article 11
Schengen Borders Code,
Border checks
Regulation 562/2006
Return Directive,
Transit zone
ECtHR,
Amuur v.
2008/115/EC, Article 4 (4)
France, 1996 (detention in
transit zone found to be
a deprivation of liberty)
EU Charter of Fundamental Rights,
Asylum seekers
ECHR, Article 3
Article 18 (right to asylum)
(prohibition of torture)
Charter, Article 19 (protection in the event
of removal, expulsion or extradition)
Asylum Procedures Directive, 2005/85/EC
25
Handbook on European law relating to asylum, borders and immigration
EU
Issues covered
CoE
Schengen Borders Code,
Push backs at sea
ECtHR,
Hirsi Jamaa and Others
Regulation 562/2006,
v. Italy, 2012 (collective
Articles 3 and 12
expulsion from high seas)
EU Charter of Fundamental Rights,
Remedies
ECHR, Article 13
Article 47 (right to an effective
(right to effective remedy)
remedy and to a fair trial)
Asylum Procedures Directive, 2005/85/EC
Schengen Borders Code,
Regulation 562/2006, Article 13
Visa Code, Regulation 810/2009,
Article 32 (3) and Article 34 (7)
Introduction
This chapter provides an overview of the regimes applicable to those who wish to
enter the territory of a European state. Furthermore, it sets out the main param-
eters that states have to respect under ECHR law as well as under EU law when
imposing conditions for access to the territory or when carrying out border manage-
ment activities.
As a general rule, states have a sovereign right to control the entry and continued
presence of non-nationals in their territory. Both EU law and the ECHR impose some
limits on this exercise of sovereignty. Nationals have the right to enter their own
country, and EU nationals have a general right under EU law to enter other EU Mem-
ber States. In addition, as explained in the following paragraphs, both EU law and
the ECHR prohibit the rejection at borders of persons at risk of persecution or other
serious harm (principle of
non-refoulement).
Under EU law, common rules exist for EU Member States regarding the issuance
of short-term visas and the implementation of border control and border sur-
veillance activities. The EU has also set up rules to prevent illegal entry. The EU
agency Frontex was created in 2004 to support EU Member States in the man-
agement of external EU borders.16 The agency also provides operational support
through joint operations at land, air or sea borders. Under certain conditions, EU
Member States can request Frontex to deploy a rapid intervention system known
as RABIT.17 When acting in the context of a Frontex or RABIT operation, EU Member
16
Regulation (EC) 2007/2004, 26 October 2004;
Regulation (EU) 1168/2011, 25 October 2011.
17
Regulation (EC) 863/2007, 11 July 2007.
26
Access to the territory and to procedures
States maintain responsibility for their acts and omissions. In October 2011,
Regula-
tion 1168/2011 amending
Regulation 2007/2004, which had established Frontex,
strengthened the fundamental rights obligations incumbent on Frontex.
As illustrated in Figure 1, the Schengen
acquis applies in full to most EU Member
States. It establishes a unified system for maintaining external border controls and
allows individuals to travel freely across borders within the Schengen area. Not all
EU Member States are parties to the Schengen area and the Schengen system ex-
tends beyond the borders of the EU to Iceland, Liechtenstein, Norway and Switzer-
land. Article 6 of the
Schengen Borders Code (Regulation No. 562/2006) prohibits
the application of the code in a way which amounts to
refoulement or unlawful
discrimination.
Under the ECHR,
states have the right as a matter of well-established international
law and subject to their treaty obligations (including the ECHR) to control the entry,
residence and expulsion of non-nationals. Access to the territory for non-nationals
is not expressly regulated in the ECHR, nor does it say who should receive a visa.
ECtHR case law only imposes certain limitations on the right of states to turn some-
one away from their borders, for example, where this would amount to
refoule-
ment. The case law may, under certain circumstances, require states to allow the
entry of an individual when it is a pre-condition for his or her exercise of certain
Convention rights, in particular the right to respect for family life.18
1.1. The Schengen visa regime
EU nationals and nationals from those countries that are part of the Schengen area
and their family members have the right to enter the territory of EU Member States
without prior authorisation. They can only be excluded on grounds of public policy,
public security or public health.
18 For more information, see ECtHR,
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
Nos. 9214/80, 9473/81 and 9474/81, 28 May 1985, paras. 82-83.
27
Handbook on European law relating to asylum, borders and immigration
Figure: Schengen area, as at 19 December 2011
IS
EU Schengen States
Non Schengen EU States
Non-EU Schengen States
FI
NO
AÇORES (PT)
AT: Austria
IT: Italy
SE
EE
MADEIRA (PT)
BE: Belgium
LI: Liechtenstein
BG: Bulgaria
LT: Lithuania
LV
CANARIAS (ES)
DK
CH: Switzerland
LU: Luxembourg
IE
LT
CY: Cyprus
LV: Latvia
UK
CZ: Czech Republic
MT: Malta
NL
PL
DE: Germany
NL: Netherlands
BE
DE
DK: Denmark
NO: Norway
LU
EE: Estonia
PL: Poland
CZ
EL: Greece
PT: Portugal
FR
SK
LI
CH
AT
ES: Spain
RO: Romania
HU
SI
FI: Finland
SE: Sweden
RO
IT
FR: France
SI: Slovenia
HU: Hungary
SK: Slovakia
PT
BG
ES
IE: Ireland
UK: United
IS: Iceland
Kingdom
EL
CY
MT
Source: European Commission, Directorate-General of Home Affairs, 2012
Under EU law, nationals from countries listed in the Annex 1 to the
Visa List Reg-
ulation (Regulation 539/2001, note also amendments) can access the territory of
the EU with a visa issued prior to entry. The Annex to the Regulation is regularly
amended and was most recently amended in November 2009 when mandatory vi-
sas ceased to be required for nationals of the following three Balkan states: Serbia,
Montenegro and the former Yugoslav Republic of Macedonia.19 Turkish nationals,
who were not subject to a visa requirement at the time of the entry into force of
the provisions of the standstill clause in 1970, cannot be made subject to a visa re-
quirement in EU Member States.20
19 Council Regulation (EC) No.1244/2009, 30 November 2009.
20 Additional Protocol to the Ankara Agreement, OJ 1972 L 293, Art. 41.
28
Access to the territory and to procedures
Personal information on short-term visa applicants is stored in the Visa Information
System (
VIS Regulation 767/2008 as amended by
Regulation 81/2009), a central IT
system which connects consulates and external border crossing points.
Visits for up to three months in states that are part of the Schengen area are subject
to th
e Visa Code (Regulation 810/2009, note also amendments). In contrast, long-
er stays are the responsibility of individual states, which can regulate this in their
domestic law. Nationals who are exempted from a mandatory visa under Regula-
tion 539/2001 may require visas prior to their visit if coming for purposes other
than a short visit. All mandatory visas must be obtained before travelling. Only spe-
cific categories of third-country nationals are exempt from this requirement.
Example: In the
Koushkaki case,21 pending as of December 2012 before the
CJEU, the Court has been asked some key questions about challenges to the
refusal of Schengen visas, namely: (1) whether the national court must satisfy
itself that the applicant intends to leave the territory of the EU Member States
before the expiry of the visa applied for, or whether it is sufficient if the court
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; and perhaps most importantly (2) whether the
Visa Code establishes a non-discretionary right to the issue of a Schengen visa if the entry
conditions are satisfied and there are no grounds for refusing the visa under
the Code.
Under Article 21 of the Convention implementing the Schengen Agreement,22 third-
country nationals who hold uniform visas and who have legally entered the terri-
tory of a Schengen state may freely move within the whole Schengen area while
their visas are still valid. According to the same article, a residence permit accom-
panied by travel documents may under certain circumstances replace a visa
. Regu-
lation 1030/2002 lays down a uniform format for residence permits.23 Aliens not
subject to a visa requirement may move freely within the Schengen territory for
21 CJEU, Case C-84/12 [2012],
Ezatollah Rahmanian Koushkaki v. Federal Republic of
Germany, 17 February 2012, reference for a preliminary ruling from the Administrative Court
(
Verwaltungsgericht) in Berlin, Germany, lodged on 17 February 2012.
22 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the
States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the
gradual abolition of checks at their common borders, OJ 2000 L 249/19.
23
Council Regulation 1030/2002, laying down a uniform format for residence permits for third-country
nationals, 13 June 2002, as amended b
y Regulation 380/2008/EC.
29
Handbook on European law relating to asylum, borders and immigration
a maximum period of three months during the six months following the date of first
entry, provided that they fulfil the entry conditions.
The
Schengen Borders Code (Regulation No. 562/2006) abolished internal border
controls. In this regard, the CJEU has held that states cannot conduct surveillance
at internal borders, which has an equivalent effect to border checks.24 Surveillance,
including through electronic means, of internal Schengen borders is allowed when
based on evidence of illegal residence, but it is subject to certain limitations, such
as intensity and frequency.25
1.2. Preventing unauthorised entry
Under EU law, measures have been taken to prevent unauthorised access to EU ter-
ritory. Th
e Carriers Sanctions Directive (2001/51/EC) provides for sanctions against
those who transport undocumented migrants into the EU.
The
Facilitation Directive (Directive 2002/90/EC) defines unauthorised entry, transit
and residence and provides for sanctions against those who facilitate such breach-
es. Such sanctions must be effective, proportionate and dissuasive (Article 3). EU
Member States can decide not to sanction humanitarian assistance, but they are not
obliged to do so (Article 1 (2)).
1.3. Entry bans and Schengen alerts
An entry ban prohibits individuals from entering a state from which they have been
expelled. The ban is typically valid for a certain period of time and ensures that
individuals who are considered dangerous or non-desirable are not given a visa or
otherwise admitted to enter the territory.
Under EU law, entry bans are entered into a database called the Schengen Informa-
tion System (SIS), which the authorities of other states signatory to the Schengen
Agreement can access and consult. In practice, this is the only way that the issu-
ing state of an entry ban can ensure that the banned third-country national will
not come back to its territory by entering through another EU Member State of
24 CJEU, Joined Cases C-188/10 and C-189/10, [2010] ECR I-05667,
Aziz Melki and Selim Abdeli [GC],
para. 74.
25 CJEU, Case C-278/12 PPU,
Atiqullah Adil v. Minister voor Immigratie, Integratie en Asiel, 19 July 2012.
30
Access to the territory and to procedures
the Schengen area and then moving freely without border controls. The Schengen
Information System was replaced by the second-generation Schengen Informa-
tion System (SIS II), which started to be operational on 9 April 2013.26 SIS II, whose
legal bases are the
SIS II Regulation 27 and th
e SIS II Decision,28 is a more advanced
version of the system and has enhanced functionalities, such as the capability to
use biometrics and improved possibilities for queries. Entry bans can be challenged.
Example: In the case of
M. et Mme Forabosco, the French Council of State
(
Conseil d’État) quashed the decision denying a visa to Mr Forabosco’s wife who
was listed on the SIS database by the German authorities on the basis that her
asylum application in Germany had been rejected. The French Council of State
held that the entry ban on the SIS database resulting from a negative asylum
decision was an insufficient reason for refusing a French long-term visa.29
Example: In the case of
M. Hicham B, the French Council of State ordered
a temporary suspension of a decision to expel an alien because he had been
listed on the SIS database. The decision to expel the alien mentioned the SIS
listing but without indicating from which country the SIS listing originated.
Since expulsion decisions must contain reasons of law and fact, the expulsion
order was considered to be illegal.30
For those individuals subject to an entry ban made in the context of a return order
under the
Return Directive (Directive 2008/115),31 the ban will normally be accom-
panied by an SIS alert and they will be denied access to the whole Schengen area.
The EU Member State which has issued an entry ban will have to withdraw it before
any other EU Member State can grant a visa or admit the person. Since the ban may
have been predicated on a situation which was specific to the state that issued it,
26 For matters falling within the scope of Title IV of the Treaty establishing the European Community
see: Council Decision 2013/158/EU of 7 March 2013 fixing the date of application of Regulation (EC)
No. 1987/2006 of the European Parliament and of the Council on the establishment, operation and
use of the second generation Schengen Information System (SIS II), OJ 2013 L87, p. 10 ; for matters
falling within the scope of Title VI of the Treaty on Europe
an Union see: Council Decision 2013/157/EU
of 7 March fixing the date of application of Decision 2007/533/JHA on the establishment, operation
and use of the second generation Schengen Information System (SIS II), OJ 2013 L87, p. 8.
27
Regulation (EC) No. 1987/2006 of the European Parliament and of the Council, 20 December 2006.
28
Council Decision 2007/533/JHA, 12 June 2007.
29 France, Council of State
, M. et Mme Forabosco, No. 190384, 9 June 1999.
30 France, Council of State
, M. Hicham B, No. 344411, 24 November 2010.
31 Directive 2008/115/EC, OJ 2008 L 348, Art. 3 (6) and Art. 1.
31
Handbook on European law relating to asylum, borders and immigration
questions arise as to the proportionality of a Schengen-wide ban, particularly in
situations involving other fundamental rights, such as when reuniting a family.
Entry bans issued outside the scope of the
Return Directive do not formally bar
other states from allowing access to the Schengen area. Other states, however, may
take entry bans into account when deciding whether to issue a visa or allow admis-
sion. The bans may therefore have effects across the Schengen area, even though
a ban may only be relevant to the issuing state that deems an individual unde-
sirable, including, for example, for reasons related to disturbing political stability:
a Schengen alert issued on a Russian politician by an EU Member State prevented
a member of the Parliamentary Assembly of the Council of Europe (PACE) from at-
tending sessions of the parliament in France. This was discussed in detail at the
October 2011 meeting of the PACE Committee on Legal Affairs and Human Rights,
which led to the preparation of a report on restrictions of freedom of movement as
punishment for political positions.32
Under the ECHR, placing someone on the SIS database is an action taken by an
individual Member State within the scope of EU law. As such, complaints can be
brought to the ECtHR alleging that the state in question violated the ECHR in placing
or retaining someone on the list.
Example: In the
Dalea v. France case, a Romanian citizen whose name had
been listed on the SIS database by France before Romania joined the EU was
unable to conduct his business or provide or receive services in any of the
Schengen area states. His complaint that this was an interference with his right
to conduct his professional activities (protected under Article 8 of the ECHR
on the right to respect for private and family life) was declared inadmissible.
In its first Chamber decision concerning registration on the SIS database and
its effects, the Court considered that the state’s margin of appreciation in
determining how to provide safeguards against arbitrariness is wider as regards
entry into national territory than in relation to expulsion.33
32 Council of Europe, Committee on Legal Affairs and Human Rights (2012),
The inadmissibility of
restrictions on freedom of movement as punishment for political positions, 1 June 2012 and
Resolution No. 1894 (provisional version), adopted on 29 June 2012.
33 ECtHR,
Dalea v. France (dec.) No. 964/07, 2 February 2010.
32
Access to the territory and to procedures
The ECtHR has also had to consider the effects of a travel ban imposed as a result
of placing an individual on an UN-administered list of
terrorist suspects as well as
designed to prevent breaches of domestic or foreign immigration laws.
Example: The case of
Nada v. Switzerland34 concerned an Italian-Egyptian
national, living in Campione d’Italia (an Italian enclave in Switzerland), who was
placed on the ‘Federal Taliban Ordinance’ by the Swiss authorities which had
implemented UN Security Council anti-terrorism sanctions. The listing prevented
the applicant from leaving Campione d’Italia, and his attempts to have his name
removed from that list were refused. The ECtHR noted that the Swiss authorities
had enjoyed a certain degree of discretion in the application of the UN counter-
terrorism resolutions. The Court went on to find that Switzerland had violated
the applicant’s rights under Article 8 of the ECHR by failing to alert Italy or
the UN-created Sanctions Committee promptly that there was no reasonable
suspicion against the applicant and to adapt the effects of the sanctions
regime to his individual situation. It also found that Switzerland had violated
Article 13 of the ECHR in conjunction with Article 8 as the applicant did not have
any effective means of obtaining the removal of his name from the list.
Example: The
Stamose v. Bulgaria35 case concerned a Bulgarian national upon
whom the Bulgarian authorities imposed a two years travel ban on account
of breaches of the U.S. immigration laws. Assessing for the first time whether
a travel ban designed to prevent breaches of domestic or foreign immigration
laws was compatible with Article 2 Protocol No. 4 ECHR, the ECtHR found that
a blanket and indiscriminate measure prohibiting the applicant from travelling
to every foreign country due to the breach of the immigration law of one
particular country was not proportionate.
1.4. Border checks
Article 6 of the
Schengen Borders Code requires that border control tasks have
to be carried out in full respect of human dignity. Controls have to be carried out
in a way which does not discriminate against a person on grounds of sex, ra-
cial or ethnic origin, religion or belief, disability, age or sexual orientation. More
34 ECtHR
, Nada v. Switzerland [GC], No. 10593/08, 12 September 2012.
35 ECtHR
, Stamose v. Bulgaria, No. 29713/05, 27 November 2012.
33
Handbook on European law relating to asylum, borders and immigration
favourable rules exist for third-country nationals who enjoy free movement rights
(Articles 3 and 7 (6)).
Under the ECHR, the requirement for a Muslim woman to remove her headscarf for
an identity check at a consulate or for a Sikh man to remove his turban at an airport
security check was found not to violate their right to freedom of religion under
Article 9 of the ECHR.36
In the case of
Ranjit Singh v. France, the UN Human Rights Committee considered
that the obligation for a Sikh man to remove his turban in order to have his official
identity photo taken amounted to a violation of Article 18 of the International
Covenant on Civil and Political Rights (ICCPR), not accepting the argument that
the requirement to appear bareheaded on an identity photo was necessary to
protect public safety and order. The reasoning of the UN Human Rights Committee
was that the state had not explained why the wearing of a Sikh turban would
make it more difficult to identify a person, who wears that turban all the time,
or how this would increase the possibility of fraud or falsification of documents.
The committee also took into account the fact that an identity photo without the
turban might result in the person concerned being compelled to remove his turban
during identity checks.37
1.5. Transit zones
States have sometimes tried to argue that individuals in transit zones do not fall
within their jurisdiction.
Under EU law, Article 4 (4) of th
e Return Directive sets out minimum rights that are
also to be applied to persons apprehended or intercepted in connection with their
irregular border crossing.
Under the ECHR, the state’s responsibility may be engaged in the case of persons
staying in a transit zone.
36 ECtHR
, Phull v. France (dec.), No. 35753/03, 11 January 2005; ECtHR,
El Morsli v. France (dec.),
No. 15585/06, 4 March 2008.
37 UN Human Rights Committee,
Ranjit Singh v. France, Communications Nos. 1876/2000 and 1876/2009,
views of 22 July 2011, para. 8.4.
34
Access to the territory and to procedures
Example: In
Amuur v. France,38 the applicants were held in the transit zone
of a Paris airport. The French authorities argued that as the applicants had
not ‘entered’ France, they did not fall within French jurisdiction. The ECtHR
disagreed and concluded that the domestic law provisions in force at the time
did not sufficiently guarantee the applicants’ right to liberty under Article 5 (1)
of the ECHR.39
1.6. Asylum seekers
Under EU law, the EU Charter of Fundamental Rights provides for the right to asy-
lum in Article 18 and the prohibition of
refoulement in Article 19. Article 78 of the
TFEU provides for the creation of a Common European Asylum System which must
respect states’ obligations under the 1951 Geneva Convention. Several legislative
instruments have been adopted to implement this provision. They also reflect the
protection from
refoulement contained in Article 33 of the 1951 Geneva Convention.
Although Article 18 of the Charter guarantees the right to asylum, EU law does not
provide for ways to facilitate the arrival of asylum seekers. Individuals who wish to
seek asylum in the EU are primarily nationals of countries requiring a visa to enter
the EU. As these individuals often do not qualify for an ordinary visa, they may have
to cross the border in an irregular manner.
The EU asylum
acquis only applies from the moment an individual has arrived at
the border. Article 3 (1) of the
Asylum Procedures Directive (2005/85/EC), which
defines the scope of the directive’s application, applies to all claims made in the
territory of EU Member States,
including at the border or in transit zones. For those
claims, Article 6 lays down details on access to the asylum procedure. In particular,
Article 6 (2) and (5) require states to ensure that individuals are able to access the
procedures effectively in practice. The safeguards in the directive are triggered by
accessing the procedures. They do not apply to those who cannot reach the terri-
tory, the border or a transit zone.
Article 35 of the
Asylum Procedures Directive permits the processing of asylum
seekers at the border. The directive allows states to continue to keep border
38 ECtHR
, Amuur v. France, No. 19776/92, 25 June 1996, paras. 52-54.
39 See also ECtHR
, Nolan and K v. Russia, No. 2512/04, 12 February 2009; ECtHR
, Riad and Idiab v.
Belgium, Nos. 29787/03 and 29810/03, 24 January 2008.
35
Handbook on European law relating to asylum, borders and immigration
procedures that existed before December 2005, even if these fall short of the guar-
antees provided by the directive for applications submitted from within the territory
of EU Member States. This provision is only guaranteed if certain basic safeguards,
such as access to information, an interpreter or a personal interview, are respected.
Under the ECHR, there is no right to asylum as such. Turning away an individual,
however, whether at the border or elsewhere within a state’s jurisdiction, there-
by putting the individual at risk of torture or inhuman or degrading treatment or
punishment, is prohibited by Article 3 of the ECHR. In extreme cases, a removal,
extradition or expulsion may also raise an issue under Article 2 of the ECHR which
protects the right to life.
The former European Commission of Human Rights examined a number of cases of
‘refugees in orbit’ where no country would accept responsibility for allowing them
to enter its territory in order for their claims to be processed.
Example: The
East African Asians case40 concerned the situation of British
passport holders with no right to reside in or enter the United Kingdom and
who had been expelled from British dependencies in Africa. This left them ‘in
orbit’. The former European Commission of Human Rights concluded that, apart
from any consideration of Article 14 of the ECHR, discrimination based on race
could in certain circumstances of itself amount to degrading treatment within
the meaning of Article 3 of the ECHR.
1.7. Push backs at sea
Access to EU territory and Council of Europe member states may be by air, land or
sea. Border surveillance operations carried out at sea not only need to respect human
rights and refugee law, but must also be in line with the international law of the sea.
Activities on the high seas are regulated by the UN Convention on the Law of the
Sea as well as by the Safety of Life at Sea (SOLAS) and Search and Rescue (SAR)
Conventions. These instruments contain a duty to render assistance and rescue per-
sons in distress at sea. A ship’s captain is furthermore under the obligation to de-
liver those rescued at sea to a ‘place of safety’.
40 European Commission of Human Rights,
East African Asians (British protected persons) v. the United
Kingdom (dec.), Nos. 4715/70, 4783/71 and 4827/71, 6 March 1978.
36
Access to the territory and to procedures
In this context, one of the most controversial issues is where to disembark persons
rescued or intercepted at sea.
Under EU law, Article 12 read in conjunction with Article 3 of th
e Schengen Borders
Code stipulates that border management activities must respect the principle of
non-refoulement. Given the complexity of the issue, the EU adopted guidelines to
assist Frontex in the implementation of operations at sea.41 The European Parlia-
ment has asked the CJEU to pronounce itself on the legality of these guidelines.
Example: In
European Parliament v. Council of the EU,42 the European
Parliament called on the CJEU to pronounce itself on the legality of the
guidelines for Frontex operations at sea (Council Decision 2010/252/EU).
The guidelines were adopted under the comitology procedure regulated in
Article 5 a of Decision 1999/468/EC without full involvement of the European
Parliament. The CJEU annulled them, despite stating that they should continue
to remain in force until replaced. The CJEU pointed out that the adopted rules
contained essential elements of external maritime border surveillance and
thus entailed political choices, which must be made following the ordinary
legislative procedure with the Parliament as co-legislator. Moreover, the
Court noticed that the new measures contained in the contested decision
were likely to affect individuals’ personal freedoms and fundamental rights
and therefore these measures again required the ordinary procedure to be
followed. According to the Court, the fact that the provisions contained in Part
II (‘Guidelines for search and rescue situations and or disembarkation in the
context of sea border operations coordinated by the Agency’) to the Annex to
Council Decision 2010/252/EC were referred to as ‘guidelines’ and were said to
be ‘non-binding’ by Article 1 did not affect their classification as essential rules.
Under the ECHR, the Convention applies to all those who are ‘within the jurisdic-
tion’ of a Council of Europe member state. The ECtHR has held on several occasions43
that individuals may fall within its jurisdiction when a state exercises control over
them on the high seas. In a 2012 case against Italy, the ECtHR’s Grand Chamber set
41 Council Decision 2010/252/EU, 26 April 2010.
42 CJEU, Case C-355/10
[2012], European Parliament v. Council of the EU, 5 September 2012, paras. 63-85.
43 ECtHR,
Xhavara and Others v. Italy and Albania, No. 39473/98, 11 January 2001; ECtHR,
Medvedyev
and Others v. France [GC], No. 3394/03, 29 March, 2010.
37
Handbook on European law relating to asylum, borders and immigration
out the rights of migrants seeking to reach European soil and the duties of states in
such circumstances.
Example: In
Hirsi Jamaa and Others v. Italy,44 the applicants were part of
a group of about 200 migrants, including asylum seekers and others, who
had been intercepted by the Italian coastguards on the high seas while within
Malta’s search and rescue area. The migrants were summarily returned to
Libya under an agreement concluded between Italy and Libya, and were given
no opportunity to apply for asylum. No record was taken of their names or
nationalities. The ECtHR noted that the situation in Libya was well-known and
easy to verify on the basis of multiple sources. It therefore considered that
the Italian authorities knew, or should have known, that the applicants, when
returned to Libya as irregular migrants, would be exposed to treatment in
breach of the ECHR and that they would not be given any kind of protection.
They also knew, or should have known, that there were insufficient guarantees
protecting the applicants from the risk of being arbitrarily returned to their
countries of origin, which included Somalia and Eritrea. The Italian authorities
should have had particular regard to the lack of any asylum procedure and the
impossibility of making the Libyan authorities recognise the refugee status
granted by UNHCR.
The ECtHR reaffirmed that the fact that the applicants had failed to ask for
asylum or to describe the risks they faced as a result of the lack of an asylum
system in Libya did not exempt Italy from complying with its obligations under
Article 3 of the ECHR. It reiterated that the Italian authorities should have
ascertained how the Libyan authorities fulfilled their international obligations
in relation to the protection of refugees. The transfer of the applicants to Libya
therefore violated Article 3 of the ECHR because it exposed the applicants to
the risk of
refoulement.
1.8. Remedies
As regards remedies, Chapter 4 on procedural safeguards will look at this issue in
more depth, while Chapter 6 will address remedies in the context of deprivation of
liberty.
44 ECtHR
, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012.
38
Access to the territory and to procedures
Under EU law, some instruments – such as the
Visa Code (Articles 32 (3)
and 34 (7)), the
Schengen Borders Code (Article 13) and the
Asylum Procedures
Directive (Article 39) – make provision for specific appeals and remedies. Article 47
of the EU Charter of Fundamental Rights also provides for a more general
guarantee. All individuals who allege to having been the victim of a violation of
the rights and freedoms guaranteed by EU law, including violation of a Charter
provision, must automatically have access to an effective remedy which includes
‘effective judicial protection’ against a refusal of access to the territory or access to
the procedures involved.
Under the ECHR, all those whose access to the territory or to procedures arguably
engages rights guaranteed under the ECHR must, under Article 13 of the ECHR, have
access to an effective remedy before a national authority. For example, in the
Hirsi
Jamaa and Others v. Italy case, the ECtHR found that there was no such remedy be-
cause the migrants had been sent back to Libya without having been afforded the
possibility to challenge this measure.
Key points
•
States have a right to decide whether to grant foreigners access to their territory,
but must respect EU law, the ECHR and applicable human rights guarantees
(see Introduction to this chapter).
•
EU law establishes common rules for EU Member States regarding the issuance of
short-term visas (see Section 1.1).
•
EU law contains safeguards relating to the implementation of border control (see
Section 1.4) and border surveillance activities, particularly at sea (see Section 1.7).
•
EU law, particularly the Schengen
acquis, enables individuals to travel free from
border controls within the agreed area (see Section 1.1).
•
Under EU law, an entry ban against an individual by a single state of the Schengen
area can deny that individual access to the entire Schengen area (see Section 1.3).
•
The EU Charter of Fundamental Rights provides for the right to asylum and for the
prohibition of
refoulement. The EU asylum
acquis applies from the moment an
individual has arrived at an EU border (see Section 1.6).
•
In certain circumstances, the ECHR imposes limitations on the right of a state to
detain or turn away a migrant at its border (see Introduction to this chapter and
Sections 1.5 and 1.6), regardless of whether the migrant is in a transit zone or
otherwise within that state’s jurisdiction. The state may also be required to provide
a remedy whereby the alleged violation of the ECHR can be put before a national
authority (see Sections 1.7 and 1.8).
39
link to page 239 link to page 239 link to page 219
Handbook on European law relating to asylum, borders and immigration
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
40
2
Status and associated
documentation
EU
Issues covered
CoE
Asylum Procedures Directive
Asylum seekers
ECtHR, Saadi v. the
(2005/85/EC), Article 7,
United Kingdom, 2008
(Right to remain)
(entry considered unauthorised
Reception Conditions Directive
until formally authorised)
(2003/9/EC), Article 6,
(right to documentation)
Qualification Directive
Recognised refugees ECHR, Article 3
(2011/95/EC)
and persons granted (prohibition of torture)
subsidiary protection
Residence Permits for
Victims of trafficking Council of Europe Convention
Victims of Trafficking
and particularly
against Trafficking, Article 14
Directive (2004/81/EC)
exploitative working (residence permit also owing to the
Employer Sanctions
conditions
personal situation of the victim)
Directive (2009/52/EC)
ECtHR
Rantsev v. Cyprus and
Russia, 2010 (Russian victim
of trafficking in Cyprus)
Persons affected
ECtHR,
Mamatkulov and Askarov
by Rule 39 interim
v. Turkey, 2005 (extradition despite
measures
indication of Rule 39 by the ECtHR)
Return Directive (2008/115/EC)
Migrants in an
ECtHR,
Kurić v. Slovenia, 2012
ECJ, C-357/09,
Kadzoev, 2009.
irregular situation
(unlawful deprivation of
residence permits)
CJEU, C-34/09,
Ruiz Zambrano, 2011
Long-Term Residents Directive
Long-term residents Convention on Establishment,
(2003/109/EC)
13 December 1955
1970 Additional Protocol
Turkish nationals
to the Ankara Agreement,
Article 41 (standstill clause)
Decision 1/80 of the EEC-Turkey
Association Council (privileges
for family members)
41
Handbook on European law relating to asylum, borders and immigration
EU
Issues covered
CoE
Free Movement Directive
Third-country
(2004/38/EC)
national family
members of
EEA nationals
CJEU, C-135/08,
Stateless persons
Rottmann, 2010 (loss of
citizenship of the Union)
Introduction
This chapter will look at status and documentation of different groups of migrants.
For many migrants, lack of status
or documentation as evidence of their status can
lead to various problems, such as being denied access to public or private services,
or to the labour market. EU law includes detailed mandatory provisions relating to
both status and documentation, and any failure to comply with those provisions
will violate EU law. The ECtHR may be called on to consider whether the absence of
status or documentation interferes with the enjoyment of an ECHR right of the indi-
vidual concerned and, if so, whether such interference is justified.
If no formal authorisation has been given by the host state, a third-country
national’s presence may be considered unlawful by that state. Both EU and ECHR
law, however, set out circumstances in which a third-country national’s presence
must be considered lawful, even if ‘unauthorised’ by the state concerned
(see Sections 2.2 and 2.5). Some EU, ECHR, EU Charter of Fundamental Rights and
ESC rights are granted only to those whose presence in a particular country is lawful
(see Chapter 8).
EU law may make express provision for a particular type of status to be recognised
or granted. It may make the issue of specific documentation mandatory
(see Sections 2.1, 2.2 and 2.8). Where an individual is entitled under EU or national
law to a certain status – or to certain documentation – the failure to accord the
status or issue the documentation will constitute an infringement of EU law.
The ECHR does not expressly require a state to grant a migrant a certain status or
issue him or her specific documentation. In some circumstances, the right to respect
for family and private life (Article 8) may require the states to recognise status,
authorise residence or issue documentation to a migrant. Article 8, however, can-
not be construed as guaranteeing as such the right to a particular type of residence
42
Status and associated documentation
permit. Where the domestic legislation provides for several different types of resi-
dence permits, the ECtHR will normally be called upon to analyse the legal and
practical implications of issuing a particular permit.45
2.1. Asylum seekers
Asylum seekers seek international protection on the basis that they cannot return
or be returned to their country of origin because they have a well-founded fear of
persecution or are at risk of being ill-treated or being subjected to other serious
harm (see Chapter 3).
Under EU law,
the situation of asylum seekers in EU Member States is regulated by
the EU asylum
acquis (all the relevant texts of the asylum
acquis and the states in
which they apply are listed in Annex 1). Obtaining access to the asylum procedure is
discussed in Chapter 1. This section deals with those asylum seekers whose claims
are pending and who are waiting for a final decision. EU law prohibits removal of
an asylum seeker until a decision on the asylum application is taken. Article 7 (1) of
the
Asylum Procedures Directive (2005/85/EC), provides that the asylum seeker’s
presence in the territory of an EU Member State is lawful. It states that asylum seek-
ers are ‘allowed to remain in the Member State’ for the purpose of the procedure
until a decision has been made. Article 35 (3) (a) makes similar provision for those
being processed at a border point.
The right to documentation for asylum seekers under EU law is set out in the
Recep-
tion Conditions Directive (2003/9/EC; see Annex 1 for EU Member States bound by
the directive). Article 6 of this directive states that all those who lodge a claim for
asylum must be given, within three days, a document testifying that they are al-
lowed to stay while the asylum claim is being examined.
Under the ECHR, no corresponding provision exists governing the asylum seekers’
status during the processing of their claims for protection. It will therefore be neces-
sary to consider whether under domestic law asylum seekers are allowed to remain
in the territory while their claims are processed.
Article 5 (1) (f) of the ECHR permits detention of asylum seekers to prevent them
from effecting ‘an unauthorised entry’ into the territory of a state. According to the
45 ECtHR
, Liu v. Russia, No. 42086/05, 6 December 2007, para. 50.
43
Handbook on European law relating to asylum, borders and immigration
ECtHR, an entry remains ‘unauthorised’ until it has been formally authorised by the
national authorities.
Example: The ECtHR held in
Saadi v. the United Kingdom46 that an entry
remained ‘unauthorised’ until it had been formally authorised by the national
authorities. In that case, the Court found that there had been no violation of
Article 5 (1) where an asylum seeker had been lawfully detained for seven
days in suitable conditions while his asylum application was being processed.
Article 2 of Protocol No. 4 to the ECHR refers to the free movement rights of those
who are ‘lawfully’ within a state, whereas Article 1 of Protocol No. 7 provides for
certain procedural safeguards against expulsion for those who are ‘lawfully’ within
the territory of a state. A person can, however, lose his or her ‘lawful’ status.
Example: Before the UN Human Rights Committee47 the German government
had acknowledged that the asylum seekers were lawfully resident for the
duration of their asylum procedure. However, in
Omwenyeke v. Germany,48 the
Court accepted the government’s argument that in violating the conditions that
the state had attached to his temporary residence – that is, the obligation to
stay within the territory of a certain city – the applicant had lost his ‘lawful’
status and thus fell outside the scope of Article 2 of Protocol No. 4 to the ECHR.
2.2. Recognised refugees and those
recognised as being in need of
subsidiary protection
Under EU law, the EU Charter for Fundamental Rights guarantees the right to asy-
lum (Article 18), thus going beyond the right to seek
asylum. Those who qualify for
asylum have the right to have this status recognised. Articles 13 (refugee status)
and 18 (subsidiary protection status for those who need international protection,
but do not qualify for refugee status) of the
Qualification Directive (2011/95/EC)
give an express right to be granted the status of refugee or subsidiary protection.
46 ECtHR
, Saadi v. the United Kingdom [GC],
No. 13229/03, 29 January 2008, para. 65.
47 CCPR/C/DEU/2002/5, 4 December 2002.
48 ECtHR
, Omwenyeke v. Germany (dec.),
No. 44294/04, 20 November 2007.
44
Status and associated documentation
Persons granted international protection can lose their status if there is genuine im-
provement of the situation in their country of origin (see Chapter 3.1.8).
Article 24 of the same directive regulates the right to documentation. Those recog-
nised as being in need of international protection are entitled to residence permits:
three years for refugees, and one year for subsidiary protection. Article 25 enti-
tles refugees and, in certain cases, beneficiaries of subsidiary protection to travel
documents.
Under the ECHR, there is no right to asylum such as that found in Article 18 of the
EU Charter of Fundamental Rights. Also, the ECtHR cannot examine whether the
refusal or withdrawal of refugee status under the 1951 Geneva Convention49 or the
non-recognition of the right to asylum under th
e Qualification Directive50 is contrary
to the ECHR. The ECtHR can, however, examine whether the removal of an alien
would subject him or her to a real risk of treatment contrary to Article 3 of the ECHR
or certain other ECHR provisions (see Chapter 3).51
2.3. Victims of trafficking and of particularly
exploitative labour conditions
Under EU law, the
Employer Sanctions Directive (2009/52/EC) criminalises some
forms of illegal employment of migrants in an irregular situation. In the case of
workers who are minors or of workers who are subject to particularly exploitative
working conditions, they may be issued a temporary residence permit to facilitate
the lodging of complaints against their employers (Article 13).52
Council Directive 2004/81/EC on the residence permit issued to third-country na-
tionals who are victims of trafficking or who have been the subject of an action to
facilitate illegal immigration allows for a reflection period during which the victim
cannot be expelled. It also requires EU Member States to issue a residence permit
to victims of trafficking who cooperate with the authorities (Articles 6 and 8, re-
spectively). The permit has to be valid for at least six months and is renewable.
49 ECtHR
, Ahmed v. Austria, No. 25964/94, 17 December 1996, para. 38.
50 ECtHR
, Sufi and Elmi v. United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, para. 226
(relating to Art. 15 o
f the Qualification Directive).
51 ECtHR
, NA. v. The United Kingdom, No. 25904/07, 17 July 2008, paras. 106-07.
52 Directive 2009/52/EC, OJ 2009 L 168/24, Art. 9.
45
Handbook on European law relating to asylum, borders and immigration
Although not dealing directly with residence permits for victims, the 2011
Traffick-
ing Directive (2011/36/EU) requires assistance and support measures to be pro-
vided before, during and after the conclusion of criminal proceedings (Article 11).
However, where proceedings against the traffickers are not envisaged or the victim
has not cooperated with any investigation, there is no clear requirement for an EU
Member State to grant a residence permit.
Under the ECHR, the prohibition against slavery and forced labour in Article 4 of
the ECHR may, in certain circumstances, require states to investigate suspected traf-
ficking and to take measures to protect victims or potential victims.
Example: The ECtHR case of
Rantsev v. Cyprus and Russia53
concerned a Russian
victim of trafficking in Cyprus. The Court held that Cyprus had failed to comply
with its positive obligations under Article 4 of the ECHR on two counts: first, it
had failed to put in place an appropriate legal and administrative framework
to combat trafficking and, secondly, the police had failed to take suitable
operational measures to protect the victim from trafficking. The ECtHR
also found that the Russian authorities had failed to conduct an effective
investigation into the victim’s recruitment by traffickers which had occurred on
Russian territory. This failure had more serious consequences in the light of the
circumstances of her departure from Russia and her subsequent death in Cyprus.
Under ECHR law, in states that are party to the Council of Europe Convention
against Trafficking, the authorities must allow the suspected victim a recovery and
reflection period during which they cannot be removed (Article 14). If the com-
petent authorities have ‘reasonable grounds’ for believing that a person has been
a victim of trafficking, the person may not be removed from the country until it
has been determined whether he or she has been a victim of a trafficking offence
(Article 10 (2)). The competent authority can issue renewable residence permits to
victims if it believes the victim’s stay is necessary owing to their personal situation
or for the purposes of the criminal investigation (Article 14 (1)). The provisions are
intended to ensure that the victims of trafficking are not at risk of being returned
to their countries without being given the appropriate help (see also Chapter 9 on
vulnerable groups and, for the list of ratifications, Annex 2).
53 ECtHR
, Rantsev v. Cyprus and Russia, No. 25965/04, 7 January 2010, para. 284.
46
Status and associated documentation
2.4. Persons affected by Rule 39
interim measures
When the ECtHR receives an application, it may decide that a state should take cer-
tain provisional measures while it continues its examination of the case.54 These are
usually referred to as Rule 39 measures.55 These measures often consist of request-
ing a state to refrain from returning individuals to countries where it is alleged that
they would face death or torture or other ill-treatment. In many cases, this con-
cerns asylum seekers whose claims have received a final rejection and who have
exhausted all appeal rights under domestic law. In some states, it may be unclear
which status an individual has when the ECtHR has applied a Rule 39 interim meas-
ure to prevent the individual’s removal while it examines the case. Regardless of
this question of status, the expelling state is under an obligation to comply with any
Rule 39 measure indicated by the ECtHR.
Example: In the case of
Mamatkulov and Askarov v. Turkey,56 the respondent
state extradited the applicants to Uzbekistan notwithstanding a Rule 39 interim
measure indicated by the ECtHR. The facts of the case clearly showed that, as
a result of their extradition, the Court had been prevented from conducting
a proper examination of the applicants’ complaints in accordance with
its settled practice in similar cases. This ultimately prevented the Court
from protecting them against potential violations of the ECHR. By virtue
of Article 34 of the Convention, member states undertook to refrain from
any act or omission that might hinder the effective exercise of an individual
applicant’s right of application. A failure by a member state to comply with
interim measures was to be regarded as preventing the Court from effectively
examining the applicant’s complaint and as hindering the effective exercise of
his or her right, thus violating Article 34 of the Convention.
2.5. Migrants in an irregular situation
The presence of those who have either entered or remained in a state without
authorisation or legal justification is considered irregular or unlawful. Irregular
or unlawful presence can arise in many ways, ranging from clandestine entry or
54 ECtHR,
Rules of the Court, as in force on 1 September 2012, Rule 39.
55 For detailed instructions on how to lodge a request under Rule 39, see UNHCR (2012).
56 ECtHR
, Mamatkulov and Askarov v. Turkey [GC], No. 46827/99 and 46951/99, 4 February 2005.
47
Handbook on European law relating to asylum, borders and immigration
absconding from a mandatory address, to being ineligible to renew an otherwise
lawful residence permit because of a change of personal circumstance. Lack of law-
ful status often affects the possibility of benefiting from other procedural and sub-
stantive rights (see Section 8.6 on access to social security and social assistance).
Under EU law,
according to th
e Return Directive (2008/115/EC; see Annex 1 for
EU Member States bound by the directive), illegally-staying third-country nationals
can no longer be left in limbo. EU Member States participating in the directive must
either regularise their stay or issue a return decision.
All persons without legal authorisation to stay fall within the ambit of the
directive. Article 6 obliges EU Member States to issue them with a ‘return
decision’. Article 6 (4), however, also sets out the circumstances excusing states
from this obligation. Along with humanitarian or other reasons, another reason
to regularise the stay can be pressing reasons of family or private life guaranteed
under Article 7 of the EU Charter of Fundamental Rights and Article 8 of the ECHR
(see Chapter 5 on family life).
Example: In
M. Ghevondyan,57 4 June 2012, the French Council of State
(
Conseil d’Etat) held that Article 6 of the
Return Directive did not impose
on the competent authorities of the Member States the obligation to take
systematically a return decision against illegally-staying third-country nationals.
Article 6 (4) mentions a number of exceptions and derogations to Article 6 (1).
Therefore, return decisions may not be made automatically. The administration
has the obligation to consider the personal and family situation of the alien
and to take into account circumstances that might prevent an expulsion order.
Among these are the interests of the child, the situation of the family and the
health of the alien, as stated by Article 5 of the directive. Consequently, the
courts should review, if this ground is invoked by the alien, the legality of the
decision in view of its consequences on the alien’s personal situation.
Allowing people to remain pending the outcome of any procedure seeking authori-
sation of stay is possible (Article 6 (5)) but not mandatory, as it is in the case of asy-
lum seekers. The provision does not address the status
of such people. Recital 12 to
th
e Return Directive reveals an awareness of the common situation that some of
those who stay without authorisation cannot be removed. It also notes that states
57 France, Council of State
(Conseil d’Etat), M. Ghevondyan, 4 June 2012.
48
Status and associated documentation
should provide written confirmation of their situation, but this is not reflected in the
operative parts of the directive. The situation is most acute for those who have to
be released from detention because the maximum permitted detention has elapsed
(see Chapter 6 on detention) but who still do not have permission to stay.58
Example: In
Kadzoev,59 a rejected Chechen asylum seeker in Bulgaria, who
could not be removed, was released from detention after a CJEU ruling
maintained that applicable EU law could under no circumstances authorise the
maximum detention period to be exceeded. Once released, the applicant found
himself without status or documents and left destitute, as Bulgarian law did
not provide for him to have any status even though he could not be removed.
This case was still pending before the ECtHR in April 2013.60
Under the ECHR, there is no Convention right to be granted specific status or re-
lated documentation in a host country; however a refusal may, in certain circum-
stances, violate the ECHR if it was based on discriminatory grounds.
Example: In
Kiyutin v. Russia,61 an Uzbek national, who had been married and
had a child with a Russian, requested a residence permit from the Russian
authorities. His permit was refused since he had tested positive for HIV. The
ECtHR stressed the particular vulnerability of persons infected with HIV and
accepted that the disease could amount to a form of disability. The blanket
provision of domestic law requiring deportation of HIV-positive non-nationals
left no room for an individualised assessment based on the facts of a particular
case and was found not to be objectively justified. The Court thus found that
the applicant had been a victim of discrimination on account of his health
status and concluded it to be a breach of Article 14 of the ECHR taken in
conjunction with Article 8.
Under the ESC, the personal scope is, in principle, limited to nationals of other state
parties that are lawfully resident or working regularly within the territory. The ECSR
has held however that, due to their fundamental nature and their link to human
58 On the situation of non-removed persons, see FRA (2011b), Chapter 2.
59 ECJ, C-357/09 [2009] ECR I-11189
, Kadzoev, 30 November 2009.
60 ECtHR,
Kadzoev v. Bulgaria, No. 56437/07, pending as at December 2012.
61 ECtHR
, Kiyutin v. Russia, No. 2700/10, 10 March 2011.
49
Handbook on European law relating to asylum, borders and immigration
dignity, certain rights apply to all persons in the territory, including irregular mi-
grants. These rights comprise the right to medical assistance,62 the right to shelter63
and the right to education.64
2.6. Long-term residents
Under EU law, the
Long-Term Residents Directive (2003/109/EC as amended by
Directive 2011/51/EU; see Annex 1 for states bound by the directive) provides for
entitlement to enhanced ‘long-term residence’ status for third-country nationals
who have resided in an EU Member State legally and continuously for five years.65
This entitlement is subject to conditions relating to stable and regular resources
and sickness insurance. There is no case law on the interpretation of these
requirements, but in relation to similar requirements in the
Family Reunification Directive (2003/86/EC; see Chapter 5 on families) the CJEU leaned towards a strict
interpretation of those conditions. It maintained that the margin of EU Member
State manoeuvre must not be used in a manner which would undermine the
objective of the directive.66
Under Article 11 of the Long-, the grant of long-term resident status
leads to
treatment equal to nationals in several important areas (see Chapter 8 on economic
and social rights).
According to the CJEU, EU Member States cannot impose excessive and
disproportionate fees for the grant of residence permits to third-country nationals
who are long-term residents and to members of their families. Such fees would
jeopardise the achievement of the objective pursued by the directive, depriving it
of its effectiveness.
62 ECSR
, International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, merits,
8 September 2004.
63 ECSR
, Defence for Children International v. the Netherlands, Complaint No. 47/2008, merits,
20 October 2009.
64 ECSR, Conclusions 2011, General Introduction, January 2012, para. 10, Statement of interpretation on
Art. 17 (2).
65 See also CJEU, C-502/10 [2012 ],
Staatssecretaris van Justitie v Mangat Singh, 18 October 2012.
66 CJEU, C-578/08 [2010] ECR I-01839
, Chakroun v. Minister van Buitenlandse Zaken, 4 March 2010,
para. 52.
50
Status and associated documentation
Example: In
Commission v. the Netherlands,67 the CJEU held that the
Netherlands had failed to fulfil its obligation under th
e Long-Term Residents
Directive, in so far as it imposed excessive and disproportionate fees (varying
from €188 to €830) on (i) third-country nationals seeking long-term resident
status, (ii) third-country nationals who have acquired long-term resident status
in another EU Member State and who seek to exercise their right to reside
and (iii) third-country nationals’ family members seeking reunification. More
specifically, the Court pointed out that Member States do not enjoy unlimited
discretion in levying fees on third-country nationals when issuing a residence
permit and that Member States are not allowed to set charges which might
create an obstacle to the exercise of the rights enshrined in the
Long-Term
Residents Directive.
Under the ECHR, long-term residence has generally been recognised as a factor to
be taken into account if expulsion is proposed (see Section 3.4).
Example: In
Kurić v. Slovenia,68 the ECtHR considered the Slovenian register
of permanent residents and the ‘erasure’ of former citizens of the Socialist
Federal Republic of Yugoslavia (SFRY) who were still permanent residents but
who had not requested Slovenian citizenship within a six-month time limit. The
consequences of such ‘erasure’ were either statelessness or loss of their residence
rights.69 Foreigners who were not citizens of other SFRY republics were not
affected in this way. The ECtHR reiterated that there might be positive obligations
inherent in effectively respecting private or family life, in particular in the case
of long-term migrants, such as the applicants, who had been unlawfully ‘erased’
from the permanent residence register in violation of Article 8 of the ECHR. It also
found that the difference in treatment between non-SFRY foreigners and those
who had previously been citizens of the SFRY constituted discrimination in breach
of Article 14 of the Convention taken together with Article 8.
The Council of Europe’s 1955 European Convention on Establishment provides for an
enhanced status in all member states for those who are long-term residents, but
only if they are nationals of states which are parties to the convention.
67 CJEU, C-508/10,
European Commission v. Kingdom of the Netherlands, 26 April 2012, para. 70.
68 ECtHR
, Kurić and Others v. Slovenia [GC], No. 26828/06, 26 June 2012.
69 Slovenia is not a party to the Council of Europe 2006 Convention on the avoidance of statelessness in
relation to state succession.
51
Handbook on European law relating to asylum, borders and immigration
2.7. Turkish citizens
The Ankara Agreement signed in 1963 and the Additional Protocol to the Ankara
Agreement added in 1970 strengthen trade and economic relations between what
was then the European Economic Community (EEC) and Turkey in light of a possible
accession by the latter to the EEC. The agreement has been the subject of more
than 40 judgments by the CJEU and, previously, the ECJ. It has also been comple-
mented by a number of decisions by the Association Council, some of which relate
to the
status of the many Turkish citizens in the territory of EU Member States. The
agreement does not give Turkish citizens any substantial right to enter or reside
in an
EU Member State; however, self-employed persons and providers of services
benefit from a standstill clause (Article 41 of the Additional Protocol). This clause
prevents states from imposing new and more stringent procedural or financial re-
quirements on them, other than those that were already in force at the time the
agreement came into being.70 A case is currently pending before the CJEU to deter-
mine if such rights also apply to Turkish nationals who wish to make use of – rather
than provide – services, also referred to as a passive freedom to provide services.71
Example: Various cases have addressed the requirements imposed on Turkish
lorry drivers employed by Turkish companies in Turkey to drive lorries to
Germany. Such cases thus concerned the Turkish companies’ right of freedom
to provide services in EU Member States. In
Abatay,72 the ECJ held that Germany
must not impose a work permit requirement on Turkish nationals willing to
provide services in its territory if such a permit was not already required when
the standstill clause came into effect.
The case of
Soysal73 concerned a visa requirement. The ECJ held that
Article 41 of the Additional Protocol to the Ankara Agreement precluded the
introduction of a visa requirement to enter Germany for Turkish nationals who
wanted to provide services on behalf of a Turkish company if no visa was
70 ECJ, C-37/98 [2000] ECR I-02927,
Savas, 11 May 2000; ECJ, C-16/05
[2007] ECR I-07415,
Tum
and Mehmet Dari, 20 September 2007; CJEU, C-186/10
, Oguz v. Secretary of State for the Home
Department, 21 July 2011.
71 CJEU, C-221/11 (pending),
Leyla Ecem Demirkan v. Federal Republic of Germany, reference for
a preliminary ruling from the Higher Administrative Court (
Oberverwaltungsgericht) in Berlin-
Brandenburg (Germany) lodged on 11 May 2011.
72 ECJ, Joined Cases C-317/01 and C-369/01 [2003] ECR I-12301,
Eran Abatay and Others and Nadi Sahin v.
Bundesanstalt für Arbeit, 21 October 2003.
73 ECJ, C-228/06 [2009] ECR I-01031
, Mehmet Soysal and Ibrahim Savatli v. Bundesrepublik
Deutschland, 19 February 2009.
52
Status and associated documentation
required at the time of the entry into force of the protocol. According to the
Court, this conclusion is not affected by the fact that the national legislation
introducing the visa was an implementation of EU Regulation 539/2001 (see
Chapter 1). Secondary EU law needs to be interpreted in a manner that is
consistent with the international agreement containing the standstill clause.
In
Oguz,74 the CJEU maintained that the standstill clause does not preclude
EU Member States from using domestic law to penalise abuse relating to
immigration. However, the fact that Mr Oguz had entered into self-employment
in breach of national immigration law, eight years after having been granted
leave to enter and remain in the country, was not considered by the CJEU to
constitute an abuse.
In relation to newer EU Member States, the relevant date for the operation of the
Turkish standstill clause is the date on which they joined the Union.
The 1970 Additional Protocol to the Ankara Agreement provides for several rights,
which are discussed in Chapter 8 on access to economic and social rights. With re-
gard to status, Turkish citizens have the right to remain in the territory while exer-
cising their social and labour market rights.75
Family members, including those who are not Turkish nationals, benefit from privi-
leged treatment under Decision 1/80 of the Association Council established by the
Ankara Agreement (‘EEC-Turkey Association Council’, see Chapter 5 on family life).76
Such rights are not subject to the conditions related to the ground on which the
right of entry and of residence was originally granted to the Turkish national in the
host Member State.
74 CJEU, C-186/10
, Oguz v. Secretary of State for the Home Department, 21 July 2011, para. 46; ECJ,
C-16/05 [2007] ECR I-07415,
Veli Tum and Mehmet Dari, 20 September 2007.
75 ECJ, C-337/07 [2008] ECR I-10323
, Altun v. Stadt Böblingen, 18 December 2008, para. 21; ECJ,
C-171/95 [1997] ECR I-00329,
Recep Tetik v. Land Berlin, 23 January 1997, para. 48; Council of Europe
1955 Convention on Establishment, Art. 2: “[…]
each Contracting Party [which includes Turkey and
many other EU countries]
shall, to the extent permitted by its economic and social conditions, facilitate
the prolonged or permanent residence in its territory of nationals of the other Parties.”
76 CJEU, C-451/11,
Natthaya Dülger v. Wetteraukreis, 19 July 2012.
53
Handbook on European law relating to asylum, borders and immigration
Example: In
Altun,77 the ECJ held that the fact that a Turkish national had
obtained the right of residence in an EU Member State and, accordingly,
the right of access to the state’s labour market as a refugee did not prevent
a member of his family from enjoying the rights arising under Decision
No. 1/80 of the Association Council. In addition, in
Kahveci78 the CJEU clarified
that family members of a Turkish worker could still claim the rights conferred
upon them by such decision once the worker had acquired the nationality of
the host EU Member State while still retaining his Turkish nationality.
2.8. Third-country nationals who are family
members of EEA or Swiss nationals
Under EU law, family members of EEA or Swiss nationals, of whatever nationality,
as well as third-country nationals who are family members of EU nationals who
have exercised their right to free movement, enjoy, under certain conditions, a right
to entry and residence in the territory of an EU Member State in order to accompany
or join the EEA, Swiss or EU citizen.79 This can only be refused for reasons of public
policy, public security or public health.
This right also entails a right to residence documents, which are evidence of their
status. Under Article 10 (1) of the
Free Movement Directive (2004/38/EC), the resi-
dence cards of third-country national family members are to be issued, at the latest,
within six months from the date on which they submit the application, and a cer-
tificate confirming the application for a residence card is to be issued immediately.80
Under the ECHR, a failure to deliver a residence permit to a third-country national
when that permit is mandated under EU law may raise an issue under Article 8 of
the ECHR.
77 ECJ, C-337/07 [2008] ECR I-10323,
Altun, 18 December 2008, para. 50.
78 CJEU, Joined Cases C-7/10 and C-9/10,
Staatssecretaris van Justitie v. Tayfun Kahveci and Osman
Inan, 29 March 2012.
79 See the agreements concluded with the EEA and with Switzerland (see footnotes 5 and
6), and the Free
Movement Directive (Directive 2004/38/EC).
80 Directive 2004/38/EC, OJ 2004 L 158/77.
54
Status and associated documentation
Example: In
Aristimuño Mendizabal v. France,81 the ECtHR found that the
applicant’s rights under Article 8 of the ECHR had been violated due to the
French authorities’ excessive delay of over 14 years in issuing her with
a residence permit. The ECtHR noted that the applicant had been entitled to
such a permit under both EU and French law.
2.9. Stateless persons and the loss of
citizenship or documentation
Neither EU law nor the ECHR covers the acquisition of citizenship. This responsibility
remains at national level. There are, however, some limits on national action relat-
ing to the loss of citizenship.
Under EU law, EU Member States have exclusive sovereignty over acquisition of
citizenship, which thus also includes EU citizenship, as well as the additional rights
which citizenship confers in many jurisdictions. Article 20 of the TFEU enshrines
the concept of citizenship of the Union, but benefits of EU citizenship are limited to
those who have national citizenship of one of the Member States.82
Loss of citizenship, however, may engage EU law if this also entails loss of EU rights.
Example: In the
Rottmann case,83 Dr Rottmann was born a citizen of Austria.
After having been accused in Austria for serious fraud in the exercise of his
profession, he had moved to Germany where he applied for naturalisation.
By acquiring German citizenship he lost his Austrian citizenship by operation
of law. Following information from the Austrian authorities that Dr Rottmann
was the subject of an arrest warrant in their country, the German authorities
sought to annul his acquisition of German citizenship on the ground that he had
obtained it fraudulently. Such decision, however, had the effect of rendering
him stateless. The referring court wished to know if this was a matter that fell
within the scope of EU law, as Dr Rottmann’s statelessness also entailed the
loss of Union citizenship. The CJEU ruled that an EU Member State decision to
81 ECtHR,
Aristimuño Mendizabal v. France,
No. 51431/99, 17 January 2006.
82 Under Art. 20 (1) of the TFEU, “
Citizenship of the Union shall be additional to and not replace national
citizenship”; ECJ, C-369/90 [1009] I-4239,
Micheletti, 7 July 1992; ECJ, C-192/99 [2001] ECR I-01237,
The
Queen v. Secretary of State for the Home Department ex parte Kaur, 20 February 2001.
83 CJEU, C-135/08 [2010] ECR II-05089
, Rottmann v. Freistaat Bayern, 2 March 2010, paras. 41-45.
55
Handbook on European law relating to asylum, borders and immigration
deprive an individual of citizenship, in so far as it implies the loss of status of
EU citizen and deprivation of attached rights, falls within the ambit of EU law
and, therefore, must be compatible with its principles. The CJEU concluded
that it is legitimate for a Member State to revoke naturalisation on account
of deception, even when the consequence is that the person loses Union
citizenship, in addition to citizenship of that Member State. Such a decision,
however, must comply with the principle of proportionality, which, among
other things, requires a reasonable period of time to be granted in order for
him or her to recover the citizenship of his or her Member State of origin.
Under the ECHR, there is no right to acquire citizenship of a state.84 The ECtHR, how-
ever, has stated that an arbitrary denial of citizenship might raise an issue under
Article 8 of the Convention because of the impact that such a denial may have on
the private life of the individual.85
Example: In the case of
Genovese v. Malta,86 the ECtHR considered the denial
of Maltese citizenship to a child born out of wedlock outside of Malta to a non-
Maltese mother and a judicially recognised Maltese father. The refusal of
citizenship itself did not give rise to a violation of Article 8 when taken alone,
but the Court considered that the impact of the refusal on the applicant’s social
identity brought it within the general scope and ambit of Article 8, and that
there had been a violation of Article 8 of the ECHR when taken together with
Article 14 because of the arbitrary and discriminatory nature of the refusal.
84 European Commission of Human Rights,
Family K. and W. v. the Netherlands (dec.),
No. 11278/84, 1 July 1985.
85 ECtHR
, Karassev v. Finland (dec.), No. 31414/96, 12 January 1999; ECtHR
, Slivenko v. Latvia [GC],
No. 48321/99, 9 October 2003; ECtHR
, Kuduzović v. Slovenia (dec.), No. 60723/00, 17 March 2005.
86 ECtHR
, Genovese v. Malta, No. 53124/09
, 11 October 2011.
56
link to page 239 link to page 239 link to page 219
Status and associated documentation
Key points
•
Documentation often allows non-citizens to access the labour market, and private
and public services; it also prevents issues with the authorities (see Introduction to
this chapter).
•
The EU Charter of Fundamental Rights expressly guarantees the right to asylum.
Although the ECHR does not guarantee the right to obtain asylum, the expelling
state may be required to refrain from removing an individual who risks death or ill-
treatment in the receiving state (see Section 2.2).
•
Under EU law, asylum seekers have a right to remain in the territory of the host state
while they await a final decision on their asylum claim (see Section 2.1) and must be
given identity documents (see Section 2.1).
•
Recognised refugees must be given identity as well as travel documents under EU law
(see Section 2.2).
•
Victims of trafficking are entitled to residence permits to facilitate their cooperation
with the police under both EU and ECHR law. EU law and the ECHR may require states
to take particular measures to protect them (see Section 2.3).
•
The
Return Directive requires that EU Member States either regularise the position
of illegally-staying third-country nationals or issue a return decision to them
(see Section 2.5).
•
Under the ECHR, failure to recognise a migrant’s status or to issue him or her with
documentation might raise an issue under Article 8 (see Section 2.5).
•
Under EU law, third-country nationals are entitled to enhanced status after legally
residing in an EU Member State continuously for five years (see Section 2.6).
•
Turkish citizens and their families cannot be made subject to more stringent
conditions as regards self-employment or providing services than were in force at the
time of the 1970 Additional Protocol to the Ankara Agreement. Turkish workers and
their families have enhanced rights to remain (see Section 2.7).
•
Third-country nationals who are family members of EEA or Swiss nationals or of EU
citizens exercising free movement rights are eligible for privileged status under EU
law (see Section 2.8).
•
Neither EU law nor the ECHR covers acquisition of citizenship, but loss of
citizenship may engage EU law if the citizenship loss also entails loss of EU rights
(see Section 2.9).
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the ‘
Further reading’ section
on page 217.
57
3
Asylum determination
and barriers to removal:
substantive issues
Issues
EU
covered
CoE
TFEU, Article 78 and EU Charter of
Principle
ECHR, Article 3 as interpreted by
Fundamental Rights, Article 18 (right to
of
non-
the ECtHR in
Soering v. the United
asylum), both referring to UN Convention
refoulement Kingdom, 1989
(extradition giving
relating to the status of refugees, which
rise to exposure to ill-treatment)
enshrines this principle in its Article 33
ECHR, Article 2 (right to life)
EU Charter of Fundamental Rights,
ECtHR,
Saadi v. Italy, 2008
Article 19 (protection in the event of
(absolute nature of prohibition
removal, expulsion or extradition)
of return to torture)
Qualification Directive
Assessment ECtHR,
Sufi and Elmi v. the United
(2011/95/EC), Article 4
of the risk
Kingdom, 2011 (how to assess the
existence of a real risk in situations
of indiscriminate violence and in
respect of humanitarian conditions)
ECtHR,
Salah Sheekh v. the
Netherlands, 2007 (burden of proof
for members of persecuted groups)
Council Regulation (EC) No. 343/2003
Dublin
ECtHR,
M.S.S. v. Belgium and Greece,
(Dublin II Regulation)
transfers
2011 (return to a state of destitution
CJEU, Joined Cases C-411/10 and C493/10,
by one EU Member State to another)
2011
N.S. and M.E., (Dublin transfers)
Return Directive
Expulsion
ECtHR,
N. v. the United Kingdom, 2008
(2008/115/EC),
of persons
(proposed removal of HIV patient where
Articles 5 and 9
seriously ill
her access to appropriate medical
treatment was uncertain at home)
Diplomatic
ECtHR,
Ramzy v. the Netherlands,
assurances
2010 (insufficient assurances)
ECtHR,
Othman (Abu Qatada)
v. the United Kingdom
(acceptable assurances)
59
Handbook on European law relating to asylum, borders and immigration
Issues
EU
covered
CoE
EU Charter of Fundamental Rights,
Asylum
Article 18 (right to asylum)
determination
Qualification Directive (2011/95/EC)
(refugee
status and
ECJ, C-465/07,
Elgafaji, 2009
subsidiary
(subsidiary protection)
protection)
Exclusion from protection:
CJEU, Joined Cases C-57/09 and
C101/09,
BB and D, 2010
Cessation of protection:
CJEU, C-175/08,
Abdulla, 2010
EU Charter of Fundamental Rights,
Article 19 (protection in the event of
removal, expulsion or extradition)
Qualification Directive
Internal
ECtHR,
Sufi and Elmi v. the United
(2011/95/EC), Article 8
relocation
Kingdom, 2011 (how to assess
humanitarian conditions in
cases of internal relocation)
EU Charter of Fundamental Rights,
Prohibition
ECHR, Article 4 of Protocol No. 4
Article 19 (protection in the event of
of collective (prohibition of expulsion of aliens)
removal, expulsion or extradition)
expulsion
ECtHR,
Čonka v. Belgium,
2002 (expulsion without
individual assessment)
ECtHR
, Hirsi Jamaa and Others
v. Italy, 2012 (collective
expulsion from high seas).
Barriers to
ECtHR,
Mamatkulov and Askarov v.
expulsion on
Turkey, 2005 (risk of a flagrant denial
other human of justice under Article 6 of the ECHR)
rights grounds
Long-term residents:
Third-country
Long-Term Residents Directive
nationals
(2003/109/EC), Article 12
with a higher
Third-country national family
degree of
members of EEA nationals:
protection
from removal
Free Movement Directive
(2004/38/EC), Article 28
CJEU, C-348/09,
P. I.,
2012
Turkish nationals:
Association Council
Decision 1/80, Article 14 (1)
ECJ, C-349/06,
Polat, 2007
60
Asylum determination and barriers to removal: substantive issues
Introduction
This chapter looks at when an individual must not, or may not, be removed from
a state due to requirements of EU law and/or the ECHR.
Absolute and near absolute barriers: Under the ECHR, absolute barriers to remov-
al exist at the very least where an expulsion would be in breach of the absolute
rights guaranteed by Article 2 on the right to life and Article 3 on the prohibition of
torture, inhuman or degrading treatment or punishment. Article 15 of the ECHR sets
out those rights that are absolute and which cannot be ‘derogated’ from.
Near absolute barriers to removal exist where there are exceptions to a general
prohibition, as is the case under the 1951 Geneva Convention and under the
Qualifi-
cation Directive (2011/95/EC). In exceptional circumstances, both instruments allow
for exceptions to the prohibition on removal of a refugee.
Non-absolute barriers exist for striking a balance between the individual’s private
interest or rights, and the public or state interest, such as when removal would
break up a family (see Section 3.4).
3.1. The right to asylum and the principle of
non-refoulement
The starting point for considering asylum in Europe
is the 1951 Geneva Convention
and its 1967 Proto-
Article 33 (1) of the 1951 Geneva
col, which are now largely incorporated into EU law
Convention provides: “No Contracting
S t a t e s h a l l e x p e l o r r e t u r n
through the
Qualification Directive (2011/95/EU).
(“
refouler”) a refugee in any manner
The 1951 Geneva Convention is the specialised
w hat so ever to the f ro ntiers of
treaty for rights of refugees. The
non-refoulement
territories where his life or freedom
principle is the cornerstone of refugee protection.87
would be threatened on account
of his race, religion, nationality,
It means that, in principle, refugees must not be re-
membership of a particular social
turned to a country where they have a reason to
group or political opinion.”
fear persecution.
87 Under international human rights law, the meaning of the
non-refoulement principle extends beyond
Art. 33 (1) of the 1951 Geneva Convention, as
non-refoulement duties also derive from Art. 3 of the
UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as
well as from general international law. See UNHCR,
Advisory Opinion on the Extraterritorial Application
of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and
its 1967 Protocol, 2007.
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Handbook on European law relating to asylum, borders and immigration
The
non-refoulement principle applies both to returns to the country of origin and
to returns to any country where the refugee would face persecution. All Member
States of the EU and Council of Europe are parties to the 1951 Geneva Convention,
but Turkey applies the Convention only in relation to refugees from Europe.88 The
UNHCR has issued a Handbook and guidelines on procedures and criteria for deter-
mining refugee status under the 1951 Geneva Convention, which covers in detail
the issues dealt with in Sections 3.2.1 – 3.2.8 as well as 4.1.89
Under EU law, Article 78 of the TFEU stipulates that the EU must provide a pol-
icy for asylum, subsidiary protection and temporary protection, ‘ensuring com-
pliance with the principle of
non-refoulement. This policy must be in accordance
with [the 1951 Geneva Convention and its Protocol] and other relevant treaties’,
such as the ECHR, the UN Convention on the Rights of the Child (UNCRC), the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UNCAT), ICCPR, ICESCR. The EU asylum
acquis measures have been
adopted under this policy, including the
Dublin II Regulation (Council Regulation
(EC) No. 343/2003), the
Qualification Directive, the
Asylum Procedures Directive (2005/85/EC) and th
e Reception Conditions Directive (2003/9/EC).90
Example: When implementing the
Qualification Directive in
Salahadin Abdulla
and Others,
the CJEU underlined “that it is apparent from recitals 3, 16 and 17 in
the preamble to the Directive that the Geneva Convention constitutes the
cornerstone of the international legal regime for the protection of refugees
and that the provisions of the Directive for determining who qualifies for
refugee status and the content thereof were adopted to guide the competent
authorities of the Member States in the application of that convention on the
basis of common concepts and criteria.”91
88 Turkey maintains a geographic reservation under Art. 1 (B) of the Convention, which restricts its obligations
to people uprooted by events in Europe.
89 UNHCR (2011).
90 All these measures are in the process of being amended or ‘recast’; not all recasts had, however, yet
been adopted as of December 2012.
91 CJEU, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 [2010] ECR I-01493,
Salahadin Abdulla
and Others v. Bundesrepublik Deutschland, 2 March 2010, para. 52; CJEU, C-31/09 [2010] ECR I-05539,
Nawras Bolbol v. Bevándorlási és Állampolgársági Hivata, 17 June 2010, para. 37; CJEU, Joined Cases
C57/09 and C101/09 [2010] ECR I-10979,
Bundesrepublik Deutschland v. B. and D., para. 77.
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Asylum determination and barriers to removal: substantive issues
The
Qualification Directive, as revised in 2011,92 brought into EU law a set of com-
mon standards for the qualification of persons as refugees or those in need of inter-
national protection. This includes the rights and duties of that protection, a key ele-
ment of which is
non-refoulement under Article 33 of the 1951 Geneva Convention.
However, neither Article 33 of the 1951 Geneva Convention nor Articles 17 and 21 of
the
Qualification Directive absolutely prohibit such
refoulement. The articles allow
for the removal of a refugee in very exceptional circumstances, namely when the
person constitutes a danger to the security of the host state or when, after the com-
mission of a serious crime, the person is a danger to the community.
Under the EU Charter of Fundamental Rights, Article 18 guarantees the right to asy-
lum, which includes compliance with the
non-refoulement principle. Article 19 of the
Charter provides that no one may be removed, expelled or extradited to a state where
they would be subjected to the death penalty, torture or other inhuman or degrading
treatment or punishment. The Explanation to the Charter states that Article 19 ‘incor-
porates the relevant case law’ of the ECtHR regarding Article 3 of the ECHR.93
As such, under EU law, any form of removal under the
Return Directive (2008/115/EC)
or transfer of an individual to another EU Member State under the
Dublin II Regulation
must be in conformity with the right to asylum and the principle of
non-refoulement.
Under the ECHR, Articles 2 and 3 of the ECHR absolutely prohibit any return of an
individual who would face a real risk of treatment contrary to either of those provi-
sions. This is different from a risk of persecution on one of the grounds set out in
the 1951 Geneva Convention.
The ECtHR has held that Article 3 of the ECHR enshrines one of the fundamental val-
ues of a democratic society and in absolute terms prohibits torture or inhuman or
degrading treatment or punishment, irrespective of the victim’s conduct, however
undesirable or dangerous. Under Article 3, a state’s responsibility will be engaged
when any expulsion is made where substantial grounds have been shown for be-
lieving that the person concerned faced a real risk of being subjected to torture or
92 Directive 2011/95/EU, OJ 2011 L 337/9.
93 See explanations relating to the EU Charter of Fundamental Rights (2007/C 303/02); ECtHR,
Ahmed v. Austria, No. 25964/94, 17 December 1996; ECtHR,
Soering v. the United Kingdom,
No. 14038/88, 7 July 1989.
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Handbook on European law relating to asylum, borders and immigration
to inhuman or degrading treatment or punishment in the country to which he or
she was returned.94
Example: In
Saadi v. Italy,95 the applicant was a Tunisian national who had been
sentenced in Tunisia, while absent from the country, to 20 years’ imprisonment
for being a member of a terrorist organisation. The applicant was also convicted
in Italy of conspiracy. The Court considered that the prospect of the applicant
possibly posing a serious threat to the community did not diminish, in any way,
the risk that he might suffer harm if deported. Furthermore, reliable human
rights reporting recorded ill-treatment of prisoners in Tunisia, particularly of
those convicted of terrorist offences. Diplomatic assurances, provided in this
case, also did not negate this risk. The Court therefore considered that there
were substantial grounds for believing that there was a real risk that the
applicant would be subjected to treatment contrary to Article 3 of the ECHR if
he were to be deported to Tunisia.
Example: In
Abdulle v. Minister of Justice,96 the Maltese Civil Court held that
Malta’s deportation of asylum seekers to Libya, who were subsequently
imprisoned and tortured, violated Article 3 of the ECHR as well as Article 36 of
the Constitution of Malta.
3.1.1. The nature of the risk under EU law
Under EU law, the
Qualification Directive protects against
refoulement. Individuals
are also eligible for refugee status (see Chapter 2 on status and associated
documentation) if they would suffer an act of persecution within the meaning
of Article 1 A of the 1951 Geneva Convention. Under Article 9 of the
Qualification Directive such act of persecution must:
94 ECtHR
, Salah Sheekh v. the Netherlands, No. 1948/04, 11 January 2007, para. 135; ECtHR
, Soering v.
the United Kingdom,
No. 14038/88, 7 July 1989; ECtHR,
Vilvarajah and Others v. the United Kingdom,
Nos. 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87, 30 October 1991.
95 ECtHR
, Saadi v. Italy [GC], No. 37201/06, 28 February 2008; ECtHR,
Mannai v. Italy, No. 9961/10,
27 March 2012.
96
Malta, Abdul Hakim Hassan Abdulle Et v. Ministry tal-Gustizzja u Intern Et, Qorti Civili Prim’Awla
(Gurisdizzjoni Kostituzzjonali), No. 56/2007, 29 November 2011.
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Asylum determination and barriers to removal: substantive issues
a) be sufficiently serious by its nature or repetition as to constitute a severe viola-
tion of basic human rights, in particular the rights from which derogation cannot
be made under Article 15 (2) of the ECHR; or
b) be an accumulation of various measures, including violations of human rights
which is sufficiently severe as to affect an individual in a similar manner as men-
tioned in point (a).
Article 9 of th
e Qualification Directive also specifies that persecution can take different
forms, including acts of physical or mental violence, administrative or legal measures
(this could for example be the case for laws prohibiting homosexuality or religious
freedom) as well as ‘acts of a gender-specific or child-specific nature’. For example,
victims of trafficking can be considered as suffering from persecution. The various
forms of persecution and the acts listed above must be attributable to one of the five
reasons for persecution derived from the 1951 Geneva Convention: race, nationality,
religion, membership of a particular social group and political opinion. These five rea-
sons for persecution are enshrined in Article 10 of th
e Qualification Directive.
Persecution may also exist when, upon return, a person is forced to conceal his or
her political convictions, sexual orientation or religious beliefs and practices to avoid
serious harm.
Example: In the joined case
Y and Z,97 the CJEU was called to define which
acts may constitute an ‘act of persecution’ in the context of a serious violation
of freedom of religion under Articles 9 (1) (a) of th
e Qualification Directive and Article 10 of the Charter. Specifically, the Court was asked whether the
definition of acts of persecution for religious reasons covered interferences
with the ‘freedom to manifest one’s faith’. The CJEU clarified that an act
of persecution may actually result from an interference with the external
manifestation of freedom of religion. The intrinsic severity of such acts and the
severity of their consequences on the persons concerned determine whether
a violation of the right guaranteed by Article 10 (1) of the Charter constitutes
an act of persecution under Article 9 (1) of the directive. The CJEU also held
that national authorities, in assessing an application for refugee status on an
individual basis, cannot reasonably expect an asylum seeker to forego religious
activities that can put his or her life in danger in the country of origin.
97 CJEU, Joined Cases C-71/11 and C-99/11
[2012], Federal Republic of Germany v. Y and Z,
5 September 2012, paras. 72 and 80.
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Handbook on European law relating to asylum, borders and immigration
A similar situation involving criminalisation of same-sex relations is under
CJEU scrutiny.98 The questions posed to the CJEU regard, in particular, whether
foreign nationals with a homosexual orientation form a particular social group
as referred to in Article 10 (1) (d) of the
Qualification Directive; and to what
extent a person can be expected to refrain from expressing his or her sexual
orientation in order to avoid persecution after returning to the country of origin.
The protection needs of persons whose asylum claims arise while in the host country
(‘
sur place refugees’) are recognised; Article 5 of the
Qualification Directive specifi-
cally covers the issue of a well-founded fear of persecution or serious harm based
on events that have taken place after the applicant left his or her country of origin.
Subsidiary protection: The
Qualification Directive guarantees ‘subsidiary protec-
tion’ to those who do not qualify as refugees but who, if returned to their country
of origin or former habitual residence, would face a real risk of suffering serious
harm defined as the death penalty (Article 15 (a)), torture or inhuman or degrading
treatment or punishment (Article 15 (b)) and serious and individual threat to a civil-
ian’s life or person by reason of indiscriminate violence in situations of international
or internal armed conflict (Article 15 (c)).
Example: The
Elgafaji case99 concerned the return of an Iraqi national to Iraq.
The CJEU assessed the granting of subsidiary protection status to an Iraqi
national who could not be qualified as a refugee and based its reasoning on the
meaning of “serious and individual threat to a civilian’s life or person by reason
of indiscriminate violence in situations of international or internal armed conflict”
referred to in Article 15 (c) of th
e Qualification Directive. The Court held that the
meaning of Article 15 (c) of the directive has its own field of application which
is different from the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman
or degrading treatment or punishment’ used in Article 15 (a)-(b) of the directive.
It covers a more general risk of harm relating either to the circumstances of the
applicant and/or to the general situation in the country of origin.
98 CJEU, Joined Cases C-199/12, C-200/12 and C-201/12 (pending),
Minister voor Immigratie en Asiel v.
X, Y and Z, reference for a preliminary ruling from the
Raad van State (Dutch Council of State) lodged
on 27 April 2012.
99 ECJ, C-465/07 [2009] ECR I-00921,
Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van
Justitie, 17 February 2009, paras. 35-39. On similar issues, see also CJEU, C-285/12 (pending),
Aboubacar
Diakite v. Commissaire général aux réfugiés et aux apatrides, reference for a preliminary ruling from
the Belgian Council of State (
Conseil d’État), lodged on 7 June 2012.
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Asylum determination and barriers to removal: substantive issues
Eligibility for subsidiary protection under Article 15 (c) requires showing
that the applicant is affected by factors particular to his or her personal
circumstances and/or by indiscriminate violence. The more the applicant
is able to show that he or she is affected by specific factors particular to his
or her personal circumstances, the lower the level of indiscriminate violence
required for him to be eligible for subsidiary protection under Article 15 (c). In
exceptional situations, the applicant may be eligible for subsidiary protection
where the degree of indiscriminate violence of an armed conflict reaches such
a high level that substantial grounds are shown for believing that he or she
may face a real risk of being subject to threat of harm based solely on account
of his or her presence in the country or region of origin.100
3.1.2. The nature of the risk under the ECHR
Under the ECHR, removal is absolutely prohibited where a state would expose an
individual to a real risk of loss of life under Article 2 of the ECHR or of torture or in-
human or degrading treatment or punishment under Article 3. There is no need to
show persecution for a ‘[1951] Geneva Convention reason’. There are no exceptions
to the prohibition of removal (see Section 3.2.7).
The ECtHR tends to examine cases either under Article 2 or 3 of the ECHR, depend-
ing on the particular circumstances and the treatment the individual risks facing if
deported or extradited. The key difference between these two ECHR articles is as
follows: in cases related to Article 2 of the ECHR, the prospect of death on return
must be a virtual certainty; in cases related to Article 3 of the ECHR substantial
grounds must exist for believing that the person to be removed would face a real
risk of being subjected to torture or other forms of ill-treatment prohibited by that
provision.
Example: In
Bader and Kanbor v. Sweden,101
the ECtHR found that to expel
someone to Syria, where he had been sentenced to death
in absentia, would
be a violation of Articles 2 and 3 of the ECHR.
100 The CJEU has also been asked to define the term ‘internal armed conflict’ in
Aboubacar Diakite v.
Commissaire général aux réfugiés et aux apatrides, C-285/12, reference for a preliminary ruling from
the Belgian Council of State, lodged on 7 June 2012.
101 ECtHR
, Bader and Kanbor v. Sweden, No. 13284/04, 8 November 2005.
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Handbook on European law relating to asylum, borders and immigration
Example: In
Al-Saadoon v. the United Kingdom,102 when authorities of the
United Kingdom operating in Iraq handed over Iraqi civilians to the Iraqi
criminal administration under circumstances where the civilians faced capital
charges, the United Kingdom was found in violation of Article 3. The Court did
not consider it necessary also to examine the complaints under Article 2 of the
ECHR or Protocol No. 13.
The ECtHR focuses on the foreseeable consequences of removing a person to the
proposed country of return. It looks at the personal circumstances of the individual
as well as the general conditions in a country, such as whether there is a general
situation of violence or armed conflict or whether there are human rights abuses.
Where an individual is a
member of a group subject to systematic ill-treatment,
it may not be necessary to adduce evidence of personal risk factors.
Example: In
Salah Sheekh v. the Netherlands,103 the ECtHR found that members
of minority clans in Somalia were “a targeted group” at risk of prohibited ill-
treatment. The relevant factor was whether the applicant would be able
to obtain protection against and seek redress for the past acts perpetrated
against him in that country. The ECtHR considered that he would not be able
to obtain such protection or redress, given that there had been no significant
improvement in the situation in Somalia since he had fled. The applicant and
his family had been specifically targeted because they belonged to a minority
group and were known to have no means of protection. The applicant could not
be required to establish the existence of further special distinguishing features
concerning him personally in order to show that he was, and continued to
be, personally at risk. The ECtHR concluded that his expulsion would violate
Article 3 of the ECHR.
In most cases, a situation of general violence in a country will not breach Arti-
cle 3 of the ECHR. When violence is of a sufficient level or intensity, however, the
individual does not need to show that he or she would be worse off than other
members of the group to which he or she belongs. Sometimes the individual may
have to show a combination of both personal risk factors and the risk of general
violence. The sole question for the Court to consider is whether there is a foresee-
able and real risk of ill-treatment contrary to Article 3 of the ECHR.
102 ECtHR
, Al-Saadoon and Mufdhi v. the United Kingdom, No. 61498/08, 2 March 2010.
103 ECtHR,
Salah Sheekh v. the Netherlands, No. 1948/04, 11 January 2007.
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Asylum determination and barriers to removal: substantive issues
Example: In
NA. v. the United Kingdom,104 the ECtHR found that the level of
generalised violence in Sri Lanka was not sufficient to prohibit all returns to
the country; however, taken together with the personal factors specific to the
applicant, his return would violate Article 3 of the ECHR. For the first time, the
ECtHR accepted the possibility that a situation of generalised violence could, in
itself, mean that all returns were prohibited.
Example: In
Sufi and Elmi v. the United Kingdom,105 the ECtHR held that the
indiscriminate violence in Mogadishu in Somalia was of a sufficient level
and intensity to pose a real risk to the life or person of any civilian there.
In assessing the level of violence, the Court looked at the following non-
exhaustive criteria: whether the parties to the conflict were either employing
methods and tactics of warfare that increased the risk of civilian casualties or
directly targeted civilians; whether the use of such methods and/or tactics
was widespread among the parties to the conflict; whether the fighting was
localised or widespread; and finally, the number of civilians killed, injured
and displaced as a result of the fighting. The situation of general violence in
Mogadishu was sufficiently intense to enable the ECtHR to conclude that any
returnee would be at a real risk of ill-treatment contrary to Article 3 solely on
account of his or her presence in the country, unless it could be demonstrated
that he or she was sufficiently well connected to powerful actors in the city to
enable him or her to obtain protection.
The individual to be removed may be at risk of various types of
harm that may
amount to treatment contrary to Article 3 of the ECHR, including sources of risk that
do
not emanate from the receiving state itself, but rather from non-state actors,
illness or humanitarian conditions in that country.
Example:
HLR v. France106
concerned a convicted drug dealer who feared
retribution from a Columbian drug ring as he had given information to the
authorities which lead to the conviction of one of their members. The Court,
however, held that, at that stage, the Columbian authorities were able to
104 ECtHR
, NA. v. the United Kingdom, No. 25904/07, 17 July 2008, paras. 114-117, 147.
105 ECtHR
, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011,
paras. 241-250, 293.
106 ECtHR
, H.L.R. v. France [GC], No. 24573/94, 29 April 1997, paras. 43-44.
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Handbook on European law relating to asylum, borders and immigration
offer the applicant protection against the risk of ill-treatment. Therefore, his
deportation would not breach Article 3 of the ECHR.
Example:
D. v. the United Kingdom107
concerned the expulsion of a terminally-
ill man. The Court considered the circumstances of the applicant’s deportation:
the withdrawal of medical treatment, the harshness of the conditions in the
country of return and the likely imminent death upon his return. It concluded
that in these very exceptional circumstances the applicant’s deportation would
amount to a breach of Article 3 of the ECHR. The Court, however, set a high
threshold for these types of cases. In a later case,
N. v. the United Kingdom,108
the expulsion of a woman to Uganda was held not to violate Article 3 of the
ECHR because the available evidence demonstrated that some form of medical
treatment was available in the woman’s home country and that she was
not terminally ill at the time. The same approach was followed in
S.H.H. v.
the United Kingdom109 where a disabled applicant failed to prove the “very
exceptional circumstances” he would face in Afghanistan that could otherwise
prevent his removal from the United Kingdom.
Example: In
Sufi and Elmi,110 the Court found that the applicants, if expelled,
were likely to find themselves in refugee camps in Somalia and neighbouring
countries where the dire humanitarian conditions breached Article 3 of the
ECHR. The Court noted that the humanitarian situation was not solely due to
naturally occurring phenomena, such as drought, but also a result of the actions
or inactions of state parties to the conflict in Somalia.
Example: At the national level, in
M. A.,111 the French Council of State (
Conseil
d’État) quashed a decision to send M. A., an Albanian national who had been
denied a residence permit, back to Albania. It found that in Albania, M. A. would
be exposed to ill-treatment and death by the family members of a person killed
when M. A. conducted a police raid. The Council of State held that Article 3 of
the ECHR applied whenever state authorities were unable to offer sufficient
protection, even if the risk came from private groups.
107 ECtHR
, D. v. the United Kingdom, No. 30240/96, 2 May 1997.
108 ECtHR
, N. v. the United Kingdom [GC], No. 26565/05, 27 May 2008.
109 ECtHR
, S.H.H. v. the United Kingdom, No. 60367/10, 29 January 2013.
110 ECtHR
, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, paras. 267-292.
111 France,
Conseil d’État,
M. A., No. 334040, 1 July 2011.
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Asylum determination and barriers to removal: substantive issues
The ECtHR has also had to consider whether an individual’s participation in dissident
activities in the host country increased his or her risk of being subjected to treat-
ment contrary to Article 3 of the ECHR upon return.112
Example: In
S.F. v. Sweden,113 the Court held that it would violate Article 3 of
the ECHR to remove an Iranian family of political dissidents who had fled Iran
and taken part in significant political activities in Sweden. The Court found that
the applicants’ activities in Iran were not, on their own, sufficient to constitute
a risk, but their activities in Sweden were important as the evidence showed
that the Iranian authorities effectively monitored internet communications, as
well as those critical of the regime, even outside of Iran. The Iranian authorities
would thus easily be able to identify the applicants on return, given their
activities and incidents in Iran before moving to Sweden, and also because the
family had been forced to leave Iran illegally without valid identity documents.
3.1.3. Assessment of risk
The principles applied under EU law and those under the ECHR have a lot in com-
mon when assessing the risk on return. This commonality may be attributed to the
EU asylum
acquis standards being largely derived from the case law of the ECtHR
and the UNHCR guidelines. These principles include the fact that assessments must
be individualised and based on a consideration of all relevant, up-to-date laws,
facts, documents and evidence. This includes information on the situation in the
country of origin. Past harm to a person can be a strong indication of future risk.
Under EU law, Article 4 of the
Qualification Directive sets out detailed rules for
assessing facts and circumstances in applications for international protection. For
example, there must be an individualised assessment; when a person has suffered
past persecution, this may be a strong indicator of future risk on return. Eligibility
officers need to consider any explanation that constitutes a ‘genuine effort’ to sub-
stantiate a claim.
The
Qualification Directive does not provide detailed guidance on the timing of an
assessment, apart from stating in Article 4 (3) that it is to be carried out at the time
of taking a decision on the application. It is unclear, however, whether the right
112 See, for example, ECtHR,
Muminov v. Russia, No. 42502/06
, 11 December 2008.
113 ECtHR
, S.F. and Others v. Sweden, No. 52077/10, 15 May 2012.
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Handbook on European law relating to asylum, borders and immigration
of appeal in th
e Asylum Procedures Directive requires a further assessment at the
time the appeal is heard. The timing to assess the cessation of protection status is
described in Section 3.1.8.
Under ECHR law, it is for the applicant to cite evidence capable of proving that there
are substantial grounds for believing that, if he or she is removed from a member
state, he or she would be exposed to a real risk of being subjected to treatment
prohibited by Article 2 or 3 of the ECHR. Where such evidence is cited, it is for the
government to dispel any doubts about it.114 The ECtHR has acknowledged that asy-
lum seekers are often in a special situation which frequently necessitates giving
them the benefit of the doubt when assessing the credibility of their statements
and their submitted supporting documents.115 However, when information is lacking
or when there is a strong reason to question the veracity of his or her submissions,
the individual must provide a satisfactory explanation.116
Example: In
Singh and Others v. Belgium,117 the Court noted that the Belgian
authorities had rejected documents submitted in support of an asylum claim by
Afghan nationals. The authorities had not found the documentation convincing
without sufficiently investigating the matter. In particular, they had failed to
check the authenticity of copies of documents issued by the UNHCR office in
New Delhi granting the applicants refugee status, although such verification
would have been easily undertaken. Therefore, they had not conducted a close
and rigorous scrutiny of the asylum claim as required by Article 13 of the ECHR,
violating that provision in conjunction with Article 3.
Under ECtHR case law, the risk must not only be assessed on the basis of individual
factors, but cumulatively
.118 Any assessment must be individualised, taking into
114 ECtHR
, Saadi v. Italy [GC], No. 37201/06, 28 February 2008, para. 129.
115 ECtHR
, Salah Sheekh v. the Netherlands, No. 1948/04, 11 January 2007, para. 148; ECtHR
, R.C. v.
Sweden, No. 41827/07, 9 March 2010, para. 50.
116 ECtHR
, Matsiukhina and Matsiukhin v. Sweden (dec.), No. 31260/04, 21 June 2005; ECtHR
, Collins and
Akaziebie (dec.), No. 23944/05, 8 March 2007.
117 ECtHR,
Singh and Others v. Belgium, No. 33210/11, 2 October 2012.
118 ECtHR
, S.F. and Others v. Sweden, No. 52077/10, 15 May 2012, paras. 68-69.
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Asylum determination and barriers to removal: substantive issues
account all the evidence.119 If a person has suffered past persecution, this might be
a strong indication that they will suffer future risk.120
When assessing the risk on return, the ECtHR has considered evidence of the gen-
eral country conditions as well as evidence of a particular risk to the individual. The
ECtHR has provided guidance on the kinds of documentation that may be relied
upon when considering country conditions, such as reports by the UNHCR and inter-
national human rights organisations. The Court has found reports to be unreliable
when the sources of information are unknown and the conclusions inconsistent with
other credible reporting.121
When an individual has not been expelled, the date of the ECtHR’s assessment is
the point in time for considering the risk.122 This principle has been applied regard-
less of whether the ECHR right at stake was absolute, such as Article 3, or non-
absolute, such as Article 8.123 When an applicant has already been expelled, the
ECtHR will look at whether the individual has been ill-treated or whether the coun-
try information demonstrates substantial reasons for believing that the applicant
would be ill-treated.
Example: In
Sufi and Elmi v. the United Kingdom,124 the ECtHR looked at reports
by international organisations on the conditions and levels of violence in
Somalia as well as the human rights abuses carried out by al-Shabaab, a Somali
Islamist insurgent group. The Court was unable to rely on a government fact-
finding report on Somalia from Nairobi, Kenya, as it contained vague and
anonymous sources and conflicted with other information in the public domain.
Judging by the available evidence, the Court considered the conditions in
Somalia unlikely to improve soon.
119 ECtHR
, R.C. v. Sweden, No. 41827/07, 9 March 2010, para. 51 (on medical certificate); ECtHR,
N. v. Sweden, No. 23505/09, 20 July 2010, para. 52; ECtHR,
Sufi and Elmi v. the United Kingdom,
No. 8319/07 and 11449/07, 28 June 2011.
120 ECtHR
, R.C. v. Sweden, No. 41827/07, 9 March 2010.
121 ECtHR
, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011,
paras. 230-234.
122 ECtHR
, Saadi v. Italy [GC], No. 37201/06, 28 February 2008.
123 ECtHR
, A. A. v. the United Kingdom, No. 8000/08, 20 September 2011.
124 ECtHR
, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011.
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Handbook on European law relating to asylum, borders and immigration
Example: In
Muminov v. Russia,125 the applicant was an Uzbek national who
was, on the basis of available information, apparently serving a five-year
sentence of imprisonment in Uzbekistan after being extradited from Russia.
The ECtHR held that even though there was no other reliable information on
the applicant’s situation after his extradition, beyond his conviction, there
was sufficient credible reporting on the general ill-treatment of convicts in
Uzbekistan to lead the Court to find a violation of Article 3 of the ECHR.
3.1.4. Sufficiency of protection
Under international refugee law, an asylum seeker who claims to be in fear of per-
secution is entitled to refugee status if he or she can show both a well-founded fear
of persecution for a reason covered by the 1951 Geneva Convention and
an insuf-
ficiency of state protection. Sufficiency of state protection means both a willingness
and ability in the receiving state, whether from state agents or other entities con-
trolling parts of the state territory, to provide through its legal system a reasonable
level of protection from the ill-treatment the asylum claimant fears.
Under EU law,
when determining eligibility for refugee or subsidiary protection,
it is necessary to consider whether in the country of proposed return the applicant
would be protected from the harm feared. Article 7 of th
e Qualification Directive provides that “[p]rotection against persecution or serious harm can only be pro-
vided by [...] the State or [...] parties or organisations, including international or-
ganisations, controlling the State or a substantial part of the territory of the State
provided they
are willing and able to offer protection [...]” which is “effective and
of a non-temporary nature”. Reasonable steps to prevent persecution are required,
which include operating an effective legal system for detection, prosecution and
punishment. The applicant must have access to such protection systems.
Example: In
Salahadin Abdulla and Others,126 which concerned the cessation
of refugee status, the CJEU held that in order for the protection offered by the
state of the refugee’s nationality to be sufficient, the state or other entities
providing protection under Article 7 (1) of the
Qualification Directive must
objectively have a reasonable level of capacity and the willingness to prevent
125 ECtHR
, Muminov v. Russia, No. 42502/06,
11 December 2008.
126 CJEU, C-175/08 [2010] ECR I-01493,
Salahadin Abdulla and Others v. Bundersrepublik Deutschland,
2 March 2010; see also Errera, R. (2011), ‘Cessation and assessment of new circumstances: a comment
on Abdulla’,
International Journal of Refugee Law, Vol. 23, No. 3, p. 521.
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Asylum determination and barriers to removal: substantive issues
acts of persecution. They must take reasonable steps to prevent persecution
by, among other things, operating
an effective legal system accessible
to the person concerned after refugee status has ceased in order to detect,
prosecute and punish acts of persecution. The state, or other entity providing
protection, must meet certain concrete requirements, including having the
authority, organisational structure and means, among other things, to maintain
a minimum level of law and order in the refugee’s country of nationality.
For Palestinian refugees, the United Nations Relief and Works Agency for Palestine
Refugees in the Near East (UNRWA) has been established to provide them with
protection and assistance. The UNRWA operates in the West Bank, including East
Jerusalem and the Gaza Strip, as well as Jordan, Syria and Lebanon. Individuals
who receive assistance from the UNRWA are not entitled to refugee status (Arti-
cle 12 (1) (a) of th
e Qualification Directive).
Example: The
Bolbol case127 concerned a stateless person of Palestinian origin
who left the Gaza strip and arrived in Hungary where she submitted an asylum
application without previously having sought protection or assistance from
the UNRWA. The CJEU clarified that, for the purposes of
Article 12 (1) (a) of
the
Qualification Directive, a person should be regarded as having received
protection and assistance from a UN agency, other than the UNHCR, only when
he or she has actually used that protection or assistance, not merely by virtue
of being theoretically entitled to it.
In
El Kott,128 the CJEU further clarified that persons forced to leave the UNRWA
operational area for reasons unconnected to their will and beyond their control
and independent volition must be automatically granted refugee status, where
none of the grounds of exclusion laid down in Articles 12 (1) (b) or (2) and (3)
of the directive apply.
Under the ECHR, the assessment of whether Article 3 has been – or would be –
violated may entail an examination of any protection that the receiving state or
organisations within it might make available to the individual to be removed. There
127 CJEU, C-31/09 [2010] ECR I-05539
, Nawras Bolbol v. Bevándorlási és Állampolgársági Hivata,
17 June 2010.
128 CJEU, C-364/11
, Abed El Karem El Kott and Others, 19 December 2012.
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Handbook on European law relating to asylum, borders and immigration
is a similarity between the concept of sufficiency of protection in refugee cases (as
previously described) and cases relating to Article 3 of the ECHR. If the treatment
the individual risks upon his or her return meets the minimum severity level to
engage Article 3, it must be assessed whether the receiving state is effectively and
practically able and willing to protect the individual against that risk.
Example: In
Hida v. Denmark,129 the applicant was an ethnic Roma facing forced
return to Kosovo during the conflict in 2004. The Court was concerned about
incidents of violence and crimes against minorities, and considered that the
need remained for international protection of members of ethnic communities,
such as Roma. The Court noted that the United Nations Interim Administration
Mission in Kosovo (UNMIK) performed an individualised screening process
prior to any forced returns proposed by the Danish National Commissioner of
Police. When UNMIK had objected to some returns, the Police Commissioner
had suspended them until further notice. The Police Commissioner had not yet
contacted UNMIK regarding the applicant’s case as his forced return had not
yet been planned. In these circumstances, the Court was satisfied that should
UNMIK object to his forced return, the return would likewise be suspended until
further notice. The Court found that no substantial grounds had been shown for
believing that the applicant, being ethnic Roma, would face a real risk of being
subjected to torture or to inhuman or degrading treatment or punishment upon
return to Kosovo. The Court, therefore, declared the case inadmissible for being
manifestly ill-founded.
The ECtHR has been called upon to examine whether
diplomatic assurances by the
receiving state can obviate the risk of ill-treatment a person would otherwise be
exposed to on return. In cases where the receiving state has provided assurances, those
assurances, in themselves, are not sufficient to ensuring adequate protection against the
risk of ill-treatment. There is an obligation to examine whether practical application of
assurances provides a sufficient guarantee that the individual will be protected against
the risk of ill-treatment. The weight given to assurances by the receiving state in each
case depends on the circumstances prevailing at the material time.
The preliminary question for the ECtHR is whether the general human rights situ-
ation in the receiving state excludes accepting any assurances. It will only be in
rare cases that the general situation in a country will mean that no weight at all
129 ECtHR
, Hida v. Denmark, No. 38025/02, 19 February 2004.
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Asylum determination and barriers to removal: substantive issues
is given to assurances. More usually the Court will first assess the quality of assur-
ances given and, secondly, whether, in light of the receiving state’s practices, they
are reliable. In doing so, the Court will also consider various factors outlined in re-
cent case law.130
3.1.5. Internal relocation
Under both EU and ECHR law, states may conclude that an individual at risk in his or
her home area may be safe in another part of his or her home country and there-
fore not in need of international protection.
Under EU law,
the possibility of such internal relocation has been codified in Arti-
cle 8 of the
Qualification Directive.
Under the ECHR,
a proposed internal relocation by the state must undergo a de-
tailed assessment from the point of return to the destination site. This includes
considering if the point of return is safe, if the route contains roadblocks or if certain
areas are safe for the individual to pass to reach the destination site. An assessment
of individual circumstances is also required.
Example: In
Sufi and Elmi v. the United Kingdom,131 the ECtHR held that
Article 3 of the ECHR, in principle, did not preclude the member states from
relying on the possibility of internal relocation, provided that the returnee could
safely avoid exposure to a real risk of ill-treatment when travelling to, gaining
admittance to and settling in the area in question. In that case, the Court
considered that there may be parts of southern and central Somalia where
a returnee would not necessarily be at a real risk of ill-treatment solely on
account of the situation of general violence. If the returnees had to travel to or
through an area under the control of al-Shabaab, they would likely be exposed
to a risk of treatment contrary to Article 3, unless it could be demonstrated that
the applicant had recent experience living in Somalia and could therefore avoid
drawing al-Shabaab’s attention. In the applicants’ case, the Court held that for
a number of reasons the applicants would be at a real risk of being exposed to
treatment in breach of Article 3.
130 ECtHR,
Othman (Abu Qatada) v. the United Kingdom, No. 8139/09, 17 January 2012, para. 189; ECtHR,
Ismoilov and Others v. Russia, No. 2947/06, 24 April 2008, para. 127; ECtHR
, Saadi v. Italy [GC],
No. 37201/06, 28 February 2008; ECtHR
, Ryabikin v. Russia,
No. 8320/04, 19 June 2008.
131 ECtHR
, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011.
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Handbook on European law relating to asylum, borders and immigration
3.1.6. Safety elsewhere
Under EU law,
an EU Member State may be permitted, for international protection rea-
sons, to return an applicant to another country for the examination of his or her applica-
tion, provided such country is considered safe and that certain safeguards are respected.
Two situations presume safety in another country. A country can be considered safe
if its national law fulfils a set of requirements listed in th
e Asylum Procedures Direc-
tive (Article 27). Among these, the asylum seeker has to be admitted by the so-
called
safe third country, have the possibility to seek protection and, if found to be
in need of international protection, be treated in accordance with the 1951 Geneva
Convention. It is particularly important that states ensure that a returnee would not
face onward
refoulement to an unsafe country.
The second presumption regards states who apply the
Dublin II Regulation, namely
the 27 EU Member States as well as Iceland, Liechtenstein, Norway and Switzerland
(see Section 4.2).132 The
Dublin II Regulation involves an allocation of responsibility
to Member States for examining asylum applications; there is a hierarchy of criteria
to allocate responsibility for examining asylum applications of persons who lodged
an application in one EU Member State and then travelled to another. There is a re-
buttable presumption that all states that apply th
e Dublin II Regulation are safe and
comply with the EU Charter of Fundamental Rights and the ECHR.
Among the various criteria listed in the
Dublin II Regulation, the state responsible
for allowing the applicant to enter the common area is typically determined to be
the state responsible for reviewing the application (Chapter III of the
Dublin II Regu-
lation). To determine through which state a person entered, his or her fingerprints
are taken upon arrival and entered into the Eurodac database (se
e Eurodac Regula-
tion, 2725/2000/EC), which all states applying the
Dublin II Regulation can access.
For example, if an asylum seeker arrives in country A and lodges an application for
asylum and has his fingerprints taken but then travels to country B, the fingerprints
in country B will be matched with those taken in country A; country B would then
have to apply the Dublin criteria to determine whether it or country A has responsi-
bility for the examination of the application for asylum.
States must ensure that individuals are not returned to EU Member States which
have systemic deficiencies in their asylum and reception systems. In certain cases
leading to serious violations of the EU Charter of Fundamental Rights, this may lead
132 Council Regulation (EC) No.
343/2003, 18 February 2003.
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Asylum determination and barriers to removal: substantive issues
to states having to examine an application, even if it is not their responsibility to do
so under th
e Dublin II Regulation.
Example: In the joined cases of
NS and
ME,133 the CJEU gave a preliminary ruling
on whether under certain circumstances a state may be obliged to examine
an application under the sovereignty clause included in Article 3 (2) of the
Dublin II Regulation even if, according to the Dublin criteria, responsibility lies
with another EU Member State. The Court clarified that EU Member States must
act in accordance with the fundamental rights and principles recognised by the
EU Charter of Fundamental Rights when exercising their discretionary power
under Article 3 (2). Therefore, Member States may not transfer an asylum
seeker to the Member State responsible within the meaning of the regulation
when the evidence shows – and the Member State cannot be unaware of –
systemic deficiencies in the asylum procedure and reception conditions that
could amount to a breach of Article 4 of the Charter (prohibition on torture).
This also obliges the Member State to examine the other criteria in the
regulation and identify if another Member State is responsible for examining
the asylum application. If identifying another Member State is not possible or
the procedure to do so takes an unreasonable amount of time, the Member
State itself must examine the application in accordance with Article 3 (2).
Under the ECHR, the ECtHR will consider, among the various elements before it,
credible human rights reporting in order to assess the foreseeable consequences
of proposed removal. The removing state has a duty to verify the risk, particularly
when human rights reports on a country show that the removing state knew or
ought to have known of the risks.
Example: In
M.S.S. v. Belgium and Greece,134 the ECtHR held that the applicant’s
living and detention conditions in Greece had breached Article 3 of the ECHR.
According to authoritative reporting, there was a lack of access to an asylum
procedure and risk of onward
refoulement. Belgian authorities were therefore
found liable under Article 3 for a Dublin transfer to Greece because, based on
available evidence, they knew, or ought to have known, of the risk to asylum
seekers in Greece of being subject to degrading treatment at that time.
133 CJEU, Joined Cases C-411/10 and C-493/10
, N.S. v. Secretary of State for the Home Department
and M.E. and Others v. Refugee Applications Commissioner & Minister for Justice, Equality and Law
Reform, 21 December 2011.
134 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011.
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Handbook on European law relating to asylum, borders and immigration
3.1.7. Exclusion from international protection
Article 1F of the 1951 Geneva Convention as well as Articles 12 and 17 of th
e Quali-
fication Directive contain provisions that exclude refugee protection for those per-
sons who do not deserve protection. These are individuals who have allegedly com-
mitted at least one of the following acts:
· a crime against peace, a war crime or a crime against humanity;
· a serious non-political crime outside the country of refuge prior to his or her
admission;
· an act contrary to the purposes and principles of the United Nations.
Assessing exclusion from international protection must come after assessing whether
a person can qualify for international protection. Persons who fall under the exclusion
clauses are not considered refugees or persons entitled to subsidiary protection.
Example: In
B and D,135 the CJEU provided guidance on how to apply the exclusion
clauses. The fact that the person concerned in this case was a member of an
organisation and actively supported the armed struggle waged by the organisation
did not automatically constitute a serious basis for considering his acts as ‘a
serious non-political crime’ or ‘acts contrary to the purposes and principles of
the UN’. Both provisions would exclude him from refugee protection. A case-
by-case assessment of the specific facts must be the basis for finding whether
there are serious reasons for considering the person guilty of such acts or crimes.
This should be done with a view to determining whether the acts committed
by the organisation meet the conditions of those provisions, and whether the
individual responsibility for carrying out those acts can be attributed to the person,
accounting for the standard of proof required under Article 12 (2) of the directive.
The Court also added that the basis for exclusion from refugee status is not
conditional on the person posing an ongoing threat to the host Member State nor
on an assessment of proportionality in relation to the particular case.
Under the ECHR, since the prohibition of torture and inhuman or degrading
treatment or punishment is absolute, irrespective of the victim’s conduct, the
135 CJEU, Joined Cases C-57/09 and C-101/09
, Bundesrepublik Deutschland v. B and D, 9 November 2010.
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Asylum determination and barriers to removal: substantive issues
nature of the applicant’s alleged offence is irrelevant for the purposes of assessing
Article 3 of the ECHR. Consequently, the applicant’s conduct, however undesirable
or dangerous, cannot be taken into account.
Example: In
Saadi v. Italy,136 the Court reconfirmed the absolute nature of the
prohibition of torture under Article 3. The applicant was prosecuted in Italy for
participation in international terrorism and ordered to be deported to Tunisia.
The ECtHR found that he would run a real risk of being subjected to treatment
in breach of Article 3 if returned to Tunisia. His conduct and the severity of
charges against him were irrelevant to the assessment of Article 3.
Example:
Babar Ahmed and Others v. the United Kingdom137 also involved
alleged terrorists facing extradition to the United States of America. The
Court found that Article 3 would not be breached by their expected detention
conditions at ADX Florence (a ‘supermax’ prison) nor by the length of their
possible sentences.
3.1.8. Cessation of international protection
Under EU law, when the risk situation in a country has improved, Arti-
cles 11 and 16 of the
Qualification Directive allow for refugee status to come to
an end, mirroring the cessation clauses under Article 1 C of the 1951 Geneva
Convention.
Example: The case of
Salahadin Abdulla and Others138 concerned the cessation
of refugee status of certain Iraqi nationals to whom Germany had granted
refugee status. The basis of the cessation of refugee status was that the
conditions in their country of origin had improved. The CJEU held that, for the
purposes of Article 11 of the
Qualification Directive, refugee status ceases
to exist when there has been a significant and non-temporary change of
circumstances in the third country concerned and the basis of fear, for which
136 ECtHR
, Saadi v. Italy [GC], No. 37201/06, 28 February 2008, para. 138; ECtHR,
Ismoilov and Others v.
Russia, No. 2947/06, 24 April 2008, para. 127; ECtHR
, Ryabikin v. Russia,
No. 8320/04, 19 June 2008.
137 ECtHR
, Babar Ahmad and Others v. the United Kingdom, Nos. 24027/07, 11949/08, 36742/08,
66911/09 and 67354/09, 10 April 2012.
138 CJEU, Joined Cases C-175/08, C-176/08, C-178/08, C-179/08 [2010] I-01493
, Salahadin Abdulla and
Others v. Bundesrepublik Deutschland, 2 March 2010.
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Handbook on European law relating to asylum, borders and immigration
the refugee status was granted, no longer exists and the person has no other
reason to fear being ‘persecuted’. For assessing a change of circumstances,
states must consider the refugee’s individual situation while verifying whether
the actor or actors of protection have taken reasonable steps to prevent the
persecution and that they, among other things, operate an effective legal
system for the detection, prosecution and punishment of acts constituting
persecution. This protection must also be accessible to the national concerned if
he or she ceases to have refugee status.
Under the ECHR,
there are no specific cessation clauses. Instead, the ECtHR will
examine the foreseeable consequences of an intended removal. The receiving
state’s past conditions may be relevant for shedding light on its current situation,
but it is the present conditions that are relevant when assessing the risk.139
To assess the situation, the ECtHR relies on relevant government reports,
information provided by the UNHCR and various international non-governmental
organisations, such as Human Rights Watch or Amnesty International.
Example: The ECtHR has made various assessments of the risk young Tamil men
would face on their return to Sri Lanka. Such assessments have been made at
various times throughout the long conflict and also following the cessation of
hostilities. The ECtHR considered the evolving overall conditions in the country
and examined the country-related risk factors that could affect the particular
individuals at the proposed time of removal.140
3.2. Collective expulsion
Under both EU and ECHR law, collective expulsions are prohibited. A collective
expulsion describes any measure that compels individuals to leave a territory or
country as a group, and where this decision has not been based on a reasonable
and objective examination of each individual’s particular case.141
139 ECtHR
, Tomic v. the United Kindgom (dec.),
No. 17837/03, 14 October 2003;
ECtHR
, Hida v. Denmark
(dec.),
No. 38025/02, 19 February 2004.
140 ECtHR
, Vilvarajah and Others v. the United Kingdom, Nos. 13163/87, 13164/87, 13165/87, 13447/87
and 13448/87, 30 October 1991; ECtHR,
NA. v. the United Kingdom, No. 25904/07, 17 July 2008.
141 For more information, see ECtHR, ‘Collective Expulsions’, Factsheet, June 2012, available at:
www.echr.coe.int/NR/rdonlyres/6E875E50-67A2-4F67-9C33-815AF6618352/0/Collective_expulsions.pdf.
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Asylum determination and barriers to removal: substantive issues
Under EU law,
collective expulsions are at odds with Article 78 of the TFEU, which
requires the asylum
acquis to be in accordance with “other relevant treaties”, and
are prohibited by Article 19 of the EU Charter of Fundamental Rights.
Under the ECHR,
Article 4 of Protocol No. 4 prohibits collective expulsions.
Example: In
Čonka v. Belgium,142 the ECtHR found that the removal of a group
of Roma asylum seekers violated Article 4 of Protocol No. 4 to the ECHR. The
Court was not satisfied that individual consideration had been taken for the
personal circumstances of each member of the expelled group. In particular,
prior to the applicants’ deportation, the political authorities announced
that collective expulsions would be carried out; they instructed the relevant
authority to implement these. All of the individuals were told to report to
a given police station at the same time, and each of the expulsion orders and
reasons for arrest were expressed in identical terms. Moreover, there was also
a lack of access to lawyers, and the asylum procedure had not been completed.
Example: In
Hirsi Jamaa and Others v. Italy,143 the Italian authorities in
operating a ‘push back’ of a boat of potential asylum seekers breached
Article 4 of Protocol No. 4. The Court held that the prohibition of expulsion
also applied to measures taken on the high seas. The ECtHR looked at the
international law provisions and EU law concerning sea interventions and the
duties of coast guards and flag ships, including in international waters where
the state still had jurisdiction within the meaning of Article 1 of the ECHR.
Example: In
Sultani v. France,144 the applicant, who had been refused asylum
in France, complained about the manner in which he was to be returned to
Afghanistan. The applicant claimed that sending him back on a grouped charter
flight would amount to collective expulsion proscribed by Article 4 of Protocol
No. 4. The ECtHR reiterated that collective expulsions were to be understood as
measures compelling aliens, as a group, to leave a country, except where the
expulsions were taken on the basis of a reasonable and objective examination
of the particular case of each individual alien in the group. Thus, if each person
concerned had been given the opportunity to put forward arguments against
expulsion to the competent authorities on an individual basis, as was the
142 ECtHR
, Čonka v. Belgium, No. 51564/99, 5 February 2002.
143 ECtHR
, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012.
144 ECtHR,
Sultani v. France, No. 45223/05, 20 September 2007.
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Handbook on European law relating to asylum, borders and immigration
case with the applicant, then several aliens being subject to similar decisions
or travelling in a group for practical reasons did not, in itself, lead to the
conclusion that there was a collective expulsion.
Collective expulsions are also contrary to the ESC and its Article 19 (8) on safeguards
against expulsion.
In its decision in
European Roma and Travellers Forum v. France,145 the ECSR
held that the administrative decisions, during the period under consideration,
ordering Roma of Romanian and Bulgarian origin to leave French territory, where
they were resident, were incompatible with the ESC: as the decisions were not
based on an examination of the personal circumstances of the Roma, they did
not respect the proportionality principle; by targeting the Roma community, they
were also discriminatory in nature. The Committee found this to be in breach of
Article E on non-discrimination read in conjunction with Article 19 (8) of the ESC.
3.3. Barriers to expulsion based on other
human rights grounds
Both EU law and the ECHR recognise that there may be barriers to removal based on
human rights grounds which are not absolute, but where a balance has to be struck
between the public interests and the interests of the individual concerned. The most
common would be the right to private or family life, which may include considera-
tions for a person’s health (including physical and moral integrity), the best interests
of children, the need for family unity or specific needs of vulnerable persons.
Under EU law, return procedures have to be implemented while taking into ac-
count the best interests of the child, family life, the state of health of the person
concerned and the principle of
non-refoulement (Article 5 of the
Return Directive).
Under the ECHR, states have the right, as a matter of well-established international
law and subject to their treaty obligations, including the ECHR, to control the entry,
residence and expulsion of aliens. There is extensive case law on the circumstances
in which qualified rights may act as a barrier to removal. Qualified rights are those
145 ECSR
, European Roma and Travellers Forum v. France, Complaint No. 64/2011, merits, 22 January 2012.
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Asylum determination and barriers to removal: substantive issues
rights with built-in qualifications, such as Articles 8-11 of the ECHR. The right to respect
for private and family life in Article 8 of the ECHR is often invoked as a shield against
expulsion in cases not involving the risk of inhuman or degrading treatment contrary
to Article 3. Section 5.2 will discuss the respect afforded to these Article 8 rights.
Barriers to removal may also be considered in respect of an allegedly flagrant
breach of Article 5 or 6 of the ECHR in the receiving country, such as if a person risks
being subjected to arbitrary detention without being brought to trial; he or she risks
being imprisoned for a substantial period after being convicted at a flagrantly unfair
trial; or he or she risks a flagrant denial of justice when awaiting trial. The appli-
cant’s burden of proof is high.146
Example: In
Mamatkulov and Askarov v. Turkey,147 the ECtHR considered
whether the applicants’ extradition to Uzbekistan resulted in their facing a real
risk of a flagrant denial of justice in breach of Article 6 of the ECHR.
Example: In
Othman (Abu Qatada) v. the United Kingdom,148 the ECtHR found,
under Article 6 of the ECHR, that the applicant could not be deported to Jordan
on the basis that evidence obtained from torture of third persons would most
likely be used in a retrial against him.
Example: In a domestic case,
EM Lebanon, the United Kingdom House of Lords
concluded that if there is a manifest violation of qualified (non-absolute)
rights – such as Article 8 of the ECHR – that strikes at the essence of the right in
question, there is no need to assess proportionality.149
Under the ESC,
Article 19 (8) prohibits the expulsion of migrant workers lawfully
residing within the territory of a state party, except where they endanger national
security or offend against public interest or morality.
The ECSR has notably held that if a state has conferred the right of residence on
a migrant worker’s spouse and/or children, the loss of the migrant worker’s own
right of residence cannot affect their family members’ independent rights of resi-
dence for as long as those family members hold a right of residence.
146 ECtHR
, Othman (Abu Qatada) v. the United Kingdom, No. 8139/09, 17 January 2012, para. 233.
147 ECtHR
, Mamatkulov and Askarov v. Turkey [GC], No. 46827/99 and 46951/99, 4 February 2005.
148 ECtHR
, Othman (Abu Qatada) v. the United Kingdom, No. 8139/09, 17 January 2012.
149 The Unit
ed Kingdom, EM (Lebanon) v. Secretary of State For The Home Department [2008] UKHL 64.
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Foreign nationals who have been resident in a state for a sufficient amount of time,
either legally or with the authorities’ tacit acceptance of their illegal status in view
of the host country’s needs, should be covered by the rules that already protect
other foreign nationals from deportation.150
3.4. Third-country nationals who enjoy
a higher degree of protection from
removal
Under EU law, there are certain categories of third-country nationals, other than
those in need of international protection, who enjoy a higher degree of protection
from removal. These include long-term residence status holders; third-country
nationals who are family members of EU/EEA nationals who have exercised their
right to freedom of movement; and Turkish nationals.
3.4.1. Long-term residents
Long-term residents enjoy enhanced protection against expulsion. A decision to ex-
pel a long-term resident must be based on conduct that constitutes an actual and
sufficiently serious threat to public policy or public security.151
3.4.2. Third-country national family members of EEA
and Swiss nationals
Individuals of any nationality who are family members of EEA nationals, including
EU citizens but only in so far as they have exercised free movement rights, have
a right to residence which derives from EU free movement provisions. Under the
Free Movement Directive (2004/38/EC), third-country nationals who have such
family relations enjoy a higher protection from expulsion compared with other cat-
egories of third-country nationals. According to Article 28 of the directive, they can
only be expelled on grounds of public policy or public security.152 In the case of
150 ECSR, Conclusions 2011, General Introduction, January 2012, statement of interpretation on Art. 19 (8).
151 Council Directive
2003/109/EC, OJ 2003 L 016/44, Art. 12.
152 As at December 2012, there has been no CJEU case law on family members. For cases concerning
EU citizens, in which the Court has interpreted the notion of “
imperative grounds of public security”
under Art. 28 (3), see: CJEU, C-348/09
, P.I. v. Oberbürgermeisterin der Stadt Remscheid, 22 May 2012,
paras. 39-56; CJEU, C-145/09 [2010] ECR I-11979
, Land Baden-Württemberg v. Panagiotis
Tsakouridis, 23 November 2010, paras. 20-35.
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Asylum determination and barriers to removal: substantive issues
permanent residents, the grounds for expulsion must reach the level of ‘serious
grounds’ relating to ‘public policy or public security’. As stated in Article 27 (2) of
the directive, these measures must comply with the principle of proportionality,
be based exclusively on the personal conduct of the individual concerned and the
individual must also represent a “genuine, present and sufficiently serious threat af-
fecting one of the fundamental interests of society”.153 For Swiss nationals, the legal
basis for protection from expulsion is found in Article 5 of Annex I to the Agreement
between the European Community and its Member States and the Swiss Confed-
eration on the free movement of persons. According to that provision, the rights
granted under the agreement may only be restricted on grounds of public order,
public security or public health.154
There is protection for family members in the event of death, divorce or departure
of the EEA national who exercised free movement rights (Articles 12 and 13 of the
Free Movement Directive). In specific situations, third-country nationals may also be
protected against expulsion by virtue of Article 20 of the TFEU (see Section 5.2).155
3.4.3. Turkish nationals
Under EU law, Article 14 (1) of Association Council Decision 1/80 provides that Turk-
ish nationals exercising rights under the Ankara Agreement can only be expelled
on grounds of public policy, public security or public health. The Court has empha-
sised that the same criteria as those used for EEA nationals should apply when
considering a proposed expulsion of Turkish citizens who have established and se-
cured residence in one of the EU Member States. EU law precludes the expulsion of
a Turkish national when that expulsion is exclusively based on general preventive
grounds, such as deterring other foreign nationals, or when it automatically follows
153 For case law on Art. 27 of Directive 2004/38/EC, with regard to the notion of ‘public policy’, see CJEU,
C-434/10,
Petar Aladzhov v. Zamestnik director na Stolichna direktsia na vatreshnite raboti kam
Ministerstvo na vatreshnite raboti, 17 November 2011; CJEU, C-430/10
, Hristo Gaydarov v. Director
na Glavna direktsia “Ohranitelna politsia” pri Ministerstvo na vatreshnite raboti, 17 November 2011.
With regard to the notion of a ‘genuine present and sufficiently serious threat affecting one of the
fundamental interests of society’, see ECJ, Joined Cases C-482/01 and C-493/01, [2004] ECR I-05257,
Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land Baden-Württemberg, 29 April 2004,
paras. 65-71.
154 Agreement between the European Community and its Member States, on the one part, and the Swiss
Confederation, on the other, on the free movement of persons, signed in Luxembourg on 21 June 1999,
entered into force on 1 June 2002, OJ 2002 L 114/6.
155 For information on a case with protection granted, see CJEU, C-34/09,
Ruiz Zambrano v. Office national
de l’emploi, 8 March 2011. For information on a case where protection was not granted, see CJEU,
C-256/11
, Murat Dereci and Others v. Bundesministerium für Inneres, 15 November 2011; see also CJEU,
C-40/11,
Iida v. Stadt Ulm (City of Ulm), 8 November 2012.
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Handbook on European law relating to asylum, borders and immigration
a criminal conviction; according to well-established case law, derogations from the
fundamental principle of freedom of movement for persons, including public policy,
must be interpreted strictly so that their scope cannot be unilaterally determined by
the EU Member States.156
Example: In
Nazli,157 the ECJ found that a Turkish national could not be expelled
as a measure of general deterrence to other aliens, but the expulsion must
be predicated on the same criteria as the expulsion of EEA nationals. The
Court drew an analogy with the principles laid down in the field of freedom
of movement for workers who are nationals of a Member State. Without
minimising the threat to public order constituted by the use of drugs, the
Court concluded, from those principles, that the expulsion, following a criminal
conviction, of a Turkish national who enjoys a right granted by the decision
of the Association Council can only be justified where the personal conduct
of the person concerned is liable to give reasons to consider that he or she
will commit other serious offences prejudicial to the public interest in the host
Member State.
Example: In
Polat,158 the Court specified that measures authorising limitations
on the rights conferred to Turkish nationals, taken on grounds of public
policy, public security or public health under Article 14 of the Association
Council, are to be based exclusively on the personal conduct of the individual
concerned. Several criminal convictions in the host Member State may
constitute grounds for taking such measures only in so far as the behaviour of
the person concerned constitutes a genuine and sufficiently serious threat to
a fundamental interest of society, a circumstance that is for the national court
to ascertain.
156 ECJ, Case 36/75
[1985] ECR I-01219,
Rutili v. Ministre de L’interieur, 28 October 1985, para.
27;
ECJ, Joined Cases C-482/01 and C-493/01 [2003] ECR I-05257,
Orfanopoulos and Oliveri,
11 September 2003,
para. 67.
157 ECJ, C-340/97 [2000] ECR I-00957
, Ömer Nazli, Caglar Nazli and Melike Nazli v. Stadt Nürnberg,
10 February 2000.
158 ECJ, C-349/06 [2007] ECR I-08167
, Murat Polat v. Stadt Rüsselsheim, 4 October 2007.
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Asylum determination and barriers to removal: substantive issues
Key points
• There are absolute, near absolute and non-absolute barriers to removal (Introduction to
this chapter).
• Prohibition of ill-treatment under Article 3 of the ECHR is absolute. Persons who face
a real risk of treatment contrary to Article 3 in their country of destination must not be
returned, irrespective of their behaviour or the gravity of charges against them. The au-
thorities must assess this risk independently of whether the individual may be excluded
from protection under th
e Qualification Directive or the 1951 Geneva Convention (see
Sections 3.1.2 and 3.1.7).
• The
non-refoulement principle under the 1951 Geneva Convention prohibits the return of
people to situations where their life or freedom would be threatened on account of their
race, religion, nationality, membership of a particular social group or political opinion
(see Section 3.1).
• Under EU law, any action taken by EU Member States under the EU asylum
acquis or un-
der th
e Return Directive, including under th
e Dublin II Regulation, must be in conformity
with the right to asylum and the principle of
non-refoulement (see Section 3.1).
• In assessing whether there is a real risk, the ECtHR focuses on the foreseeable conse-
quences of the removal of the person to the country of proposed return, looking at the
personal circumstances of the individual as well as the general conditions in the country
(see Sections 3.1.3 and 3.3).
• Under the ECHR, the asylum seeker needs, in principle, to corroborate his or her claim,
and it is frequently necessary to give them the benefit of the doubt when assessing the
credibility of their statements. However, where substantiation is lacking or when infor-
mation is presented which gives strong reason to question the veracity of the asylum
seeker’s submissions, the individual must provide a satisfactory explanation for this (see
Section 3.1.3).
• An individual may risk treatment prohibited by EU law or the ECHR in the receiving state,
even if this does not always emanate from the receiving state itself but rather from non-
state actors, an illness or humanitarian conditions in that country (see Section 3.1.2).
• An individual, who would risk treatment prohibited by EU law or the ECHR if returned
to his home area in the receiving country, may be safe in another part of the country
(‘internal relocation’) (see Section 3.1.5). Alternatively, the receiving state may be able
to protect him against such a risk (‘sufficiency of protection’) (see Section 3.1.4). In these
cases, the expelling state may conclude that he or she is not in need of international
protection (see Section 3.1.4).
• Both EU law and the ECHR prohibit collective expulsions (see Section 3.2)
.
• Under EU law, qualifying third-country national family members of EEA nationals can only
be expelled on grounds of public policy, or public security. These derogations are to be
interpreted strictly and their assessment must be based exclusively on the personal con-
duct of the individual involved (see Section 3.4.2).
89
link to page 239 link to page 239 link to page 219
Handbook on European law relating to asylum, borders and immigration
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
90
4
Procedural safeguards
and legal support in
asylum and return cases
EU
Issues covered
CoE
Asylum Procedures
Asylum
Directive (2005/85/EC)
procedures
EU Charter of Fundamental
Right to an
ECHR, Article 13 (right to an
Rights, Article 47
effective remedy effective remedy)
(right to an effective
ECtHR,
Abdolkhani and Karimnia
remedy and to a fair trial)
v. Turkey, 2009 (domestic remedy needs
to deal with the substance of the claim)
Asylum Procedures Directive
Suspensive effect ECtHR,
Gebremedhin v.
(2005/85/EC), Article 39
France, 2007 (suspensive effect of domestic
remedy for asylum claims in transit zone)
ECtHR,
Hirsi Jamaa and Others
v. Italy, 2012 (absence of suspensive effect
of domestic remedies against military
personnel operating a “push back at sea”)
Asylum Procedures Directive
Accelerated
ECtHR,
I.M. v. France, 2012
(2005/85/EC), Article 23 (4)
asylum
(procedural safeguards for
procedures
accelerated asylum procedures)
Council Regulation (EC)
Dublin
ECtHR,
M.S.S. v. Belgium and Greece, 2011
No. 343/2003
procedures
(transfer under the “Dublin procedure”
(Dublin II Regulation)
raising risk of degrading treatment)
CJEU, C-411/10,
N.S., 2011
ECtHR,
De Souza Ribeiro
CJEU, C-245/11,
K., 2012
v. France 2012 (suspensive effect
in Article 8 ECHR claims)
Return Directive
Return
ECHR, Article 13 (right to an
(2008/115/EC)
procedure
effective remedy)
ECHR, Protocol 7, Article 1 (procedural
safeguards relating to expulsion of aliens)
ECtHR,
C.G. and Others v.
Bulgaria, 2008 (lack of procedural
safeguards in deportation proceedings)
91
Handbook on European law relating to asylum, borders and immigration
EU
Issues covered
CoE
EU Charter of Fundamental
Legal assistance ECHR, Article 13 (right to an
Rights, Article 47
effective remedy)
(right to an effective
ECtHR,
M.S.S. v. Belgium and
remedy and to a fair trial)
Greece, 2011 (ineffective legal aid scheme)
Asylum Procedure Directive
Legal assistance Committee of Ministers, Guidelines on
(2005/85/EC), Article 15
in asylum
human rights protection in the context of
procedures
accelerated asylum procedures, 1 July 2009
Return Directive
Legal assistance Committee of Ministers, Twenty guidelines
(2008/115/EC),
in return
on forced return,
Article 13 (remedies)
decisions
4 May 2005
Introduction
This chapter looks at the procedure for examining applications for international protec-
tion (asylum procedures), as well as procedures for expulsion or return. It first touches on
procedural requirements imposed on those responsible for making asylum or return deci-
sions. It then examines the right to an effective remedy against such decisions, listing
the main elements that are required for a remedy to be effective (see also Section 1.8 on
remedies in the context of border management). Finally, the chapter addresses issues
concerning legal assistance. Chapter 7 will focus on the way removal is performed.
ECtHR case law requires states to exercise independent and rigorous scrutiny of
claims, which raise substantive grounds for fearing a real risk of torture, inhuman or
degrading treatment or punishment upon return. Some of the requirements elabo-
rated in the Court’s case law have been included in the recas
t Asylum Procedures Directive, which was under review at EU level in October 2012.
Throughout this chapter, the right to an effective remedy as included in Article 13 of
the ECHR will be compared with the broader scope of the right to an effective rem-
edy as found in Article 47 of the EU Charter of Fundamental Rights.
4.1. Asylum procedures
Under both EU law and the ECHR, asylum seekers must have access to effective asy-
lum procedures, including remedies capable of suspending a removal during the ap-
peals process.
The EU
Asylum Procedures Directive (2005/85/EC) sets out minimum standards
on procedures for granting and withdrawing asylum. In October 2012, the amend-
ments to the directive were discussed in order to define common standards. The
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Procedural safeguards and legal support in asylum and return cases
directive applies to asylum claims made in the territory of EU Member States bound
by the directive, including at borders and in transit zones (Article 3).
4.1.1. Interview, examination procedure and initial
decision making
Asylum seekers and their dependants need to have access to asylum procedures,
according to Article 6 of the
Asylum Procedures Directive (see also Section 2.2).
They are allowed to remain in an EU Member State until a decision is made in
accordance with procedures under Chapter 3 of the directive.159
Under EU law, the
Asylum Procedures Directive sets out provisions for the exam-
ination of a claim. Applications should not automatically be rejected by the quasi-
judicial or administrative body responsible for taking first instance decisions for
failure to submit an application as soon as possible.
Applicants need to be given a
personal interview (Articles 12-13 of the
Asylum
Procedures Directive)160 and a corresponding written report has to be drafted and
made accessible to the applicants (Article 14). Unaccompanied minors have specific
guarantees, including the right to a representative. The best interests of the child
must be a primary consideration (Article 17 (6); see also Chapter 9). For more infor-
mation on legal assistance, see Section 4.5.
The
examination of an asylum claim must always be taken individually, objec-
tively and impartially using up-to-date information (Articles 2 and 8 of the
Asylum
Procedures Directive and Article 4 of the
Qualification Directive). Article 10 of the
Asylum Procedures Directive provides that asylum applicants must be informed of
the procedure to follow and time frame in a language they may reasonably be sup-
posed to understand; receive the services of an interpreter, whenever necessary;
be allowed to communicate with UNHCR; be given notice of the decision within
a reasonable time; and be informed of the decision in a language they understand
or may reasonably be supposed to understand.
Asylum seekers are entitled to
withdraw their asylum claims. The procedures for
withdrawal must also comply with notification requirements, which include written
159 Unless it is an extradition case under the Council Framework Decision 2002/584/JHA on the European
arrest warrant, which has its own procedural safeguards, see ECJ, C-388/08 [2008] ECR I-08993,
Leymann & Pustovarov, 1 December 2008.
160 See also CJEU, C- 277/11
[2012], M. M. v. Minister for Justice, Equality and Law Reform, Ireland and
Attorney General, 22 November 2012.
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Handbook on European law relating to asylum, borders and immigration
notification (Articles 37 and 38 of the
Asylum Procedures Directive). In other cases,
claims may be treated as withdrawn or abandoned; the state, however, needs to
take a decision to discontinue the examination and record the action taken (Arti-
cles 19 and 20 of the
Asylum Procedures Directive).
The examination of a claim must comply with the procedural requirements of the
Asylum Procedures Directive, as well as the requirements for assessing evidence of
a claim under th
e Qualification Directive (Article 4).
The
Asylum Procedures Directive includes provisions for EU Member States to dero-
gate from basic guarantees under the directive in respect of inadmissible applica-
tions, safe third-country cases or subsequent claims (Article 24). Claims can only be
considered unfounded if the application does not qualify for protection under the
Qualification Directive.
Decisions on asylum applications must be taken as soon as possible and in ac-
cordance with the basic guarantees. If decisions cannot be taken within six months,
the applicant has to be informed of the delay or upon his or her request given in-
formation as to when a decision can be expected (Article 23). Decisions must be in
writing and must give information on how they can be challenged (Article 9 of the
Asylum Procedures Directive).
Under the ECHR,
the Court has held that individuals need access to the asylum
procedure as well as adequate information concerning the procedure to be fol-
lowed. The authorities are also required to avoid excessively long delays in deciding
asylum claims.161 In assessing the effectiveness of examining first instance asylum
claims, the Court has also considered other factors, such as the availability of inter-
preters, access to legal aid and the existence of a reliable system of communica-
tion between the authorities and the asylum seekers.162 In terms of risk examina-
tion, Article 13 requires independent and rigorous scrutiny by a national authority
of any claim where there exist substantial grounds for fearing a real risk of being
treated in a manner contrary to Article 3 (or Article 2) in the event of an applicant’s
expulsion.163
161 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011; ECtHR,
Abdolkhani and
Karimnia v. Turkey, No. 30471/08, 22 September 2009.
162 For more information, see ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011,
para.
301.
163
Ibid., para.
293.
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Procedural safeguards and legal support in asylum and return cases
4.1.2. Right to an effective remedy
Individuals must have access to a practical and effective remedy against a refusal
of asylum, a residence permit or for any other complaint alleging a breach of their
human rights. In this context, both EU law and the ECHR recognise that procedural
safeguards need to be complied with in order for individual cases to be examined
effectively and speedily. To such end, detailed procedural requirements have been
developed both under EU law and by the ECtHR.
Under EU law, Article 47 of the EU Charter of Fundamental Rights provides a “right
to an effective remedy and to a fair trial”. The first paragraph of Article 47 of the
Charter is based on Article 13 of the ECHR, which ensures the right to an “effective
remedy before a national authority”. The EU Charter of Fundamental Rights, how-
ever, requires that the review be done by a tribunal, whereas Article 13 of the ECHR
only requires a review before a national authority.164
The second paragraph of Article 47 of the EU Charter of Fundamental Rights is based
on Article 6 of the ECHR, which guarantees the right to a fair hearing but only in the
determination of civil rights or obligations, or any criminal charge. This has preclud-
ed the application of Article 6 of the ECHR to immigration and asylum cases since
they do not involve the determination of a civil right or obligation.165 Article 47 of
the EU Charter of Fundamental Rights makes no such distinction.
Under the ECHR,
Article 6 of the ECHR guarantees the right to a fair hearing before
a court, but this provision has been held to be inapplicable to asylum and immigra-
tion cases (see Section 4.5). It is Article 13 that is applicable to such cases and pro-
vides the right to an effective remedy before a national authority. Other convention
rights, including Article 3 of the ECHR, may be read in conjunction with Article 13.
Furthermore, the right to private and family life, as guaranteed by Article 8 of the
ECHR, has also been held to include inherent procedural safeguards (briefly de-
scribed in Section 4.4). In addition, the prohibition of arbitrariness inherent in all
convention rights is often relied on to provide important safeguards in asylum or
immigration cases.166 For remedies against unlawful or arbitrary deprivation of lib-
erty, see Chapter 6 (Section 6.10).
164 Explanations relating to the EU Charter of Fundamental Rights, No. 2007/C 303/02.
165 ECtHR
, Maaouia v. France (dec.), No. 39652/98, 12 January 1999, paras. 38-39.
166 ECtHR
, C.G. and Others v. Bulgaria, No. 1365/07, 24 April 2008,
para. 49.
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Handbook on European law relating to asylum, borders and immigration
The ECtHR has laid down general principles as to what constitutes an effective rem-
edy in cases concerning the expulsion of asylum seekers. Applicants must have
a remedy at national level capable of addressing the substance of any “arguable
complaint” under the ECHR and, if necessary, granting appropriate relief.167 As
a remedy must be “effective” in practice as well as in law, the ECtHR may need to
consider, among other elements, whether an asylum seeker was afforded sufficient
time to file an appeal.
Example: In
Abdolkhani and Karimnia v. Turkey,168 both the administrative
and judicial authorities remained passive regarding the applicants’ serious
allegations of a risk of ill-treatment if they were returned to Iraq or Iran.
Moreover, the national authorities failed to consider their requests for
temporary asylum, to notify them of the reasons thereof and to authorise them
to have access to legal assistance, despite their explicit request for a lawyer
while in police detention. These failures by the national authorities prevented
the applicants from raising their allegations under Article 3 of the ECHR within
the relevant legislative framework. Furthermore, the applicants could not apply
to the authorities for annulment of the decision to deport them as they had
not been served with the deportation orders or notified of the reasons for their
removal. Judicial review in deportation cases in Turkey could not be regarded
as an effective remedy since an application for annulment of a deportation
order did not have suspensive effect unless the administrative court specifically
ordered a stay of execution. The applicants had therefore not been provided
with an effective and accessible remedy in relation to their complaints based
on Article 3 of the ECHR.
Example: Constitutional courts in Austria and the Czech Republic have found
deadlines that were two and seven days too short.169 Conversely, in
Diouf170
the
CJEU found that a 15-day time limit to appeal in an accelerated procedure “does
not seem, generally, to be insufficient in practical terms to prepare and bring
an effective action and appears reasonable and proportionate in relation to the
rights and interests involved”.
167 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011, para. 288; ECtHR
, Kudła v.
Poland [GC], No. 30210/96, 26 October 2000, para. 157.
168 ECtHR
, Abdolkhani and Karimnia v. Turkey, No. 30471/08, 22 September 2009, paras. 111-117.
169 Austria, Austrian Constitutional Court (
Österreichische Verfassungsgerichtshof), decision G31/98,
G79/98, G82/98, G108/98 of 24 June 1998; Czech Republic, Czech Constitutional Court (
Ústavní soud
Ceské republiky) Decision No. 9/2010, Coll. which came into effect in January 2010.
170 CJEU, C-69/10,
Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration, 28 July 2011, para. 67.
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Procedural safeguards and legal support in asylum and return cases
Other state action, which may hinder the effectiveness of guarantees, include fail-
ing to notify individuals of a decision or of their appeal rights, or hindering a de-
tained asylum seeker’s contact with the outside world. In some respects, there is
a commonality between the requirements elaborated by the ECtHR and the proce-
dural safeguards under th
e Asylum Procedures Directive.
Example: In
Čonka v. Belgium,171 a case involving the collective expulsion
of Roma asylum seekers under Article 4 of Protocol No. 4 to the Convention,
administrative and practical barriers hindered the ability of the applicants to
pursue their asylum claims in Belgium. In the first instance proceedings, the
applicants had no access to their case file, could not consult the record of notes
taken at the hearing or demand that their observations be put on record. The
remedies available before the higher instance had no automatic suspensive
effect. The Court concluded that there had been a violation of Article 13 in
conjunction with Article 4 of Protocol No. 4 to the ECHR.
Even if a single remedy alone does not entirely satisfy the requirements of
Article 13 of the ECHR, the aggregate of remedies provided for under domestic law
may do so.172
4.1.3. Appeals with automatic suspensive effect
Under EU law, Article 39 of th
e Asylum Procedures Directive provides the right to
an effective remedy before a court or tribunal. This follows the wording of Arti-
cle 47 of the EU Charter of Fundamental Rights. The directive requires EU Member
States to define in their domestic laws whether applicants have the right to remain
in the country pending the outcome of the appeal. In case of a non-automatic sus-
pensive effect, the state must provide measures to ensure the right to an effective
remedy. In practice, some EU Member States do not provide for an automatic right
to stay pending the outcome either of applications considered manifestly unfound-
ed or inadmissible, or of transfer decisions taken under the
Dublin II Regulation
(Council Regulation (EC) No. 343/2003).173
171 ECtHR
, Čonka v. Belgium, No. 51564/99, 5 February 2002.
172 ECtHR
, Kudła v. Poland [GC], No. 30210/96, 26 October 2000.
173 For an overview of state practices in the EU, see FRA (2012), pp. 41-45.
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Handbook on European law relating to asylum, borders and immigration
Under the ECHR,
the Court has held that when an individual appeals against a re-
fusal of his or her asylum claim, the appeal must have an automatic suspensive
effect
when the implementation of a return measure against him or her might have
potentially irreversible effects contrary to Article 3.
Example: In
Gebremedhin [Gaberamadhien] v. France,174 the ECtHR considered
that the applicant’s allegations as to the risk of ill-treatment in Eritrea had
been sufficiently credible to make his complaint under Article 3 of the ECHR
an “arguable” one. The applicant could therefore rely on Article 13 taken in
conjunction with Article 3. The latter provision required that foreign nationals
have access to a remedy with suspensive effect, against a decision to remove
him or her to a country where there was real reason to believe that he or she
ran the risk of being subjected to ill-treatment contrary to Article 3. In the case
of asylum seekers who claimed to run such a risk and who had already been
granted leave to enter French territory, French law provided for a procedure
that met some of these requirements. The procedure did not apply, however,
to persons claiming such a risk who turned up at the border upon arrival at
an airport. In order to lodge an asylum application, foreign nationals had to
be on French territory. If they turned up at the border, they could not make
such an application unless they were first given leave to enter the country. If
they did not have the necessary papers to that effect, they had to apply for
leave to enter on grounds of asylum. They were then held in a “waiting area”
while the authorities examined whether their intended asylum application
was “manifestly ill-founded”. If the authorities deemed the application to be
“manifestly ill-founded”, they refused the person concerned leave to enter the
country. He or she was then automatically liable to be removed without having
had the opportunity to apply for asylum. While the individual in question could
apply to the administrative courts to have the ministerial decision refusing
leave to enter set aside, such an application had no suspensive effect and was
not subject to any time limits. Admittedly, he or she could apply to the urgent
applications judge, as the applicant had done without success. This remedy,
however, did not have an automatic suspensive effect either, meaning the
person could be removed before the judge had given a decision. Given the
importance of Article 3 of the ECHR and the irreversible nature of the harm
caused by torture or ill-treatment, it is a requirement under Article 13 that,
where a state party has decided to remove a foreign national to a country
174 ECtHR
, Gebremedhin [Gaberamadhien] v. France, No. 25389/05, 26 April 2007.
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Procedural safeguards and legal support in asylum and return cases
where there was real reason to believe that he or she ran a risk of torture
or ill-treatment, the person concerned must have access to a remedy with
automatic suspensive effect. Such an effect “in practice” was not sufficient. As
the applicant had not had access to such a remedy while in the “waiting area”,
Article 13 of the ECHR, read in conjunction with Article 3, had been breached.
Example: In
M.S.S. v. Belgium and Greece,175 the Court found that Greece had
violated Article 13 of the ECHR in conjunction with Article 3 because of its
authorities’ deficiencies in examining the applicant’s asylum request, and the
risk he faced of being directly or indirectly returned to his country of origin
without any serious examination of the merits of his asylum application and
without having access to an effective remedy.
Example: In
Hirsi Jamaa and Others v. Italy,176 an Italian ship at sea had
intercepted potential asylum seekers. The Italian authorities had led them to
believe that they were being taken to Italy and had not informed them of the
procedures to take in order to avoid being returned to Libya. The applicants
had thus been unable to lodge their complaints under Article 3 of the ECHR or
Article 4 of Protocol No. 4 with a competent authority, and to obtain a thorough
and rigorous assessment of their requests before the removal measure was
enforced. The Court concluded that there had been a violation of Article 13 of
the ECHR taken in conjunction with Article 3 and of Article 4 of Protocol No. 4.
In a recent Grand Chamber case, the ECtHR considered whether a claim under Arti-
cle 13 of the ECHR in conjunction with Article 8 also required the domestic remedy
to have an automatic suspensive effect.
Example: In
De Souza Ribeiro v. France,177 the applicant, a Brazilian national,
had resided in French Guiana (a French overseas territory) with his family since
the age of seven. Following his administrative detention for failing to show
a valid residence permit, the authorities ordered his removal. He was deported
the next day, approximately 50 minutes after having lodged his appeal against
the removal order. The Grand Chamber of the ECtHR considered that the haste
with which the removal order was executed had the effect of rendering the
175 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011, para. 293.
176 ECtHR
, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012, paras. 197-207.
177 ECtHR
, De Souza Ribeiro v. France, No. 22689/07, 13 December 2012.
99
Handbook on European law relating to asylum, borders and immigration
available remedies ineffective in practice and therefore inaccessible. The
applicant had not had access in practice to effective remedies in respect of
his complaint under Article 8 of the Convention when he was about to be
deported. The Court found a violation of Article 13 in conjunction with Article 8.
4.1.4. Accelerated asylum procedures
Under EU law, Article 23 (4) of the
Asylum Procedures Directive lists the circum-
stances in which accelerated or priority procedures might be applied, such as when
an application is considered unfounded because the applicant is from a safe country
of origin. Typically, accelerated procedures include shorter deadlines in which to
appeal, and lower procedural safeguards; an appeal may not have automatic sus-
pensive effect such that the right to stay during the appeal procedure must specifi-
cally be requested and/or granted on a case by case basis. Th
e Asylum Procedures
Directive, including its provisions on accelerated procedures, was as at Decem-
ber 2012 still being amended.
Under the ECHR, the Court has held that there was a need for independent and
rigorous scrutiny of every asylum claim. Where this was not the case, the Court has
found breaches of Article 13 of the ECHR taken in conjunction with Article 3.
Example: In
I.M. v. France,178 the applicant, who claimed to be at risk of ill-
treatment if deported to Sudan, attempted to apply for asylum in France. The
authorities had taken the view that his asylum application had been based on
“deliberate fraud” or constituted “abuse of the asylum procedure” because
it had been submitted after the issuance of his removal order. The first and
only examination of his asylum application was therefore automatically
processed under an accelerated procedure, which lacked sufficient safeguards.
For instance, the time limit for lodging the application had been reduced
from 21 to five days. This very short application period imposed particular
constraints as the applicant had been expected to submit a comprehensive
application in French, with supporting documents, meeting the same
application requirements as those submitted under the normal procedure
by persons not in detention. While the applicant could have applied to the
administrative court to challenge his deportation order, he only had 48 hours
to do so as opposed to the two months under the ordinary procedure. The
178 ECtHR,
I.M. v. France, No. 9152/09, 2 February 2012, paras. 136-160.
100
Procedural safeguards and legal support in asylum and return cases
applicant’s asylum application was thus rejected without the domestic system,
as a whole, offering him a remedy that was effective in practice. Therefore, he
had not been able to assert his complaint under Article 3 of the ECHR. The Court
found that there had been a violation of Article 13 combined with Article 3 of
the ECHR.
4.2. Dublin procedures
The
Dublin II Regulation,179 applied by 31 European states, determines which state is
responsible for examining an asylum application. Based on the criteria established
by the regulation, if another state is responsible for examining the application, the
regulation sets forth the transfer procedure to this state.
Under EU law,
the
Dublin II Regulation provides time frames for compliance and
stipulates the need for the state to gather certain evidence before transferring an
applicant, the need to ensure confidentiality of personal information, as well as the
need to inform the individual of the Dublin transfer and its basis. There are eviden-
tial requirements in terms of administrative cooperation (Article 21 of the
Dublin II
Regulation) and safeguards in terms of cessation of responsibility.
Example: In
Kastrati,180 the CJEU held that the regulation no longer applies
when an asylum application is withdrawn before the EU Member State that is
responsible for examining the application and that has agreed to take charge
of the applicant. It is for the Member State, in whose territory the application
was lodged, to take the decisions required as a result of that withdrawal and,
in particular, to discontinue the examination, recording that information on the
applicant’s file.
The
Dublin II Regulation also contains procedural safeguards for certain vulnerable
individuals. Article 6 of the regulation makes special provision for unaccompanied
minors. A responsible state may request an EU Member State to examine an ap-
plication in order to maintain family unity or where there are other humanitarian
concerns (Article 15 “humanitarian clause”). Where serious humanitarian issues are
concerned, an EU Member State may in some circumstances become responsible
179 Council Regulation 2003/343/EC, 18 February 2003.
180 CJEU, C-620/10
, Migrationsverket v. Nurije Kastrati and Others, 3 May 2012, para. 49.
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Handbook on European law relating to asylum, borders and immigration
under Article 15 (2) of the regulation for reviewing an asylum application when one
person is dependent on another person and provided that family ties exist between
the two.
Example: The case of
K,181 concerned the proposed transfer from Austria
to Poland of a woman whose daughter-in-law had a new-born baby. The
daughter-in-law was furthermore suffering from serious illness and a handicap,
following a traumatic experience in a third country. If what happened to her
were to become known, the daughter-in-law would likely be at risk of violent
treatment by male family members on account of cultural traditions seeking
to re-establish family honour. In these circumstances the CJEU held that where
the conditions stated in Article 15 (2) are satisfied, the Member State which,
on the humanitarian grounds referred to in that provision, is obliged to take
charge of an asylum seeker becomes the Member State responsible for the
examination of the application for asylum. The proposed amendments to the
Dublin II Regulation place a greater focus on the safety of vulnerable groups.
An EU Member State, even where it is not responsible under the
Dublin II Regula-
tion criteria, may nevertheless decide to examine an application (the “sovereignty
clause” of Article 3 (2) of the
Dublin II Regulation). Article 3 (2) can be used to
safeguard third-country nationals against a breach of core rights enshrined in the EU
Charter of Fundamental Rights. If a transfer to an EU Member State deemed respon-
sible under the Dublin criteria would expose the applicant to a risk of ill-treatment
prohibited by Article 4 of the charter, the state which intends to transfer the appli-
cant must continue examining the other regulation criteria and, within a reasonable
length of time, determine whether the criteria enable another Member State to be
identified as responsible for the examination of the asylum application. This may
lead the first mentioned state, if necessary, to make use of the sovereignty clause
in order to eliminate the risk of infringement of the applicant’s fundamental rights.
181 CJEU, Case C-245/11,
K v. the Bundesasylamt, 6 November 2012.
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Procedural safeguards and legal support in asylum and return cases
Example: In the joint cases of
N.S. and M.E.,182 the CJEU looked at whether
Article 4 of the EU Charter of Fundamental Rights, which corresponds to
Article 3 of the ECHR, would be breached if the individuals were transferred
to Greece under the
Dublin II Regulation. By the time the CJEU considered the
cases, the ECtHR had already held that the reception and other conditions for
asylum seekers in Greece breached Article 3 of the ECHR. The CJEU held that
the Member States could not be “unaware” of the systemic deficiencies in the
asylum procedure and reception conditions in Greece that create a real risk for
asylum seekers to be subjected to inhuman or degrading treatment. It stressed
that the
Dublin II Regulation had to be implemented in conformity with Charter
rights, which meant that the United Kingdom and Ireland were obliged to
examine the asylum claims, despite the fact that the applicants had lodged
their asylum claims in Greece.
Under the ECHR, it is not the role of the ECtHR to interpret the
Dublin II Regulation.
However, as shown by the Court’s case law, Articles 3 and 13 can also be applicable
safeguards in the context of Dublin transfers.
Example: In
M.S.S. v. Belgium and Greece,183 the ECtHR found violations by
both Greece and Belgium in respect of the applicant’s right to an effective
remedy under Article 13 of the ECHR taken in conjunction with its Article 3.
The Court concluded that due to Greece’s failure to apply the asylum legislation
and the major structural deficiencies for access to the asylum procedure and
remedies, there were no effective guarantees protecting the applicant from
onward arbitrary removal to Afghanistan, where he risked ill-treatment.
Regarding Belgium, the procedure for challenging a Dublin transfer to Greece
did not meet the ECtHR case law requirements of close and rigorous scrutiny
of a complaint in cases where expulsion to another country might expose an
individual to treatment prohibited by Article 3.
182 CJEU, Joined Cases C-411/10 and C-493/10
, N.S. v. Secretary of State for the Home Department
and M.E. and Others v. Refugee Applications Commissioner & Minister for Justice, Equality and Law
Reform, 21 December 2011.
183 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011.
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Handbook on European law relating to asylum, borders and immigration
4.3. Procedures relating to reception
conditions of asylum seekers
Under EU law, within 15 days of lodging an asylum application, asylum seekers
must be informed of the benefits to which they are entitled and any obligations
they must comply with in relation to reception conditions. Information on the legal
assistance or help available also needs to be provided. The individual should be
able to understand the information provided.
Asylum applicants have the right to appeal against decisions of the authorities not
to grant benefits (Article 21 of the
Reception Conditions Directive (2003/9/EC)). In
addition, national law must set down procedures relating to access to legal assis-
tance and representation.
Failure to comply with obligations under th
e Reception Conditions Directive may ei-
ther be actionable as a breach of EU law giving rise to
Francovich damages (see the
Introduction to this handbook), and/or as a breach of Article 3 of the ECHR.184
Example: Both the ECtHR and the CJEU have held in
M.S.S. and
N.S., respectively,
that systemic flaws in the asylum procedure and reception conditions for asylum
seekers in the responsible Member State resulted in inhuman and degrading
treatment contrary to Article 3 of the ECHR or Article 4 of the EU Charter of
Fundamental Rights.185
4.4. Return procedures
Under EU law,
th
e Return Directive (2008/115/EC) provides for certain safeguards
on the issuance of return decisions (Articles 6, 12 and 13) and encourages the use of
voluntary departures over forced removals (Article 7).
According to Article 12 of the directive, return decisions as well as re-entry ban
decisions must be in writing in a language that the individual can understand or
may reasonably be presumed to understand, including information on available
legal remedies. To this end, EU Member States are obliged to publish information
184 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011.
185
Ibid.; CJEU, C-411/10 [2011],
N.S. v. Secretary of State for the Home Department, 21 December 2011,
para. 86.
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Procedural safeguards and legal support in asylum and return cases
sheets at least in the five most common languages for migrant groups specific
to a Member State. Article 13 of the
Return Directive provides that third-country
nationals must be afforded the right to an appeal or review of a removal decision
before a competent judicial or administrative authority or other competent
independent body with the power to suspend removal temporarily while any such
review is pending. The third-country national should have the possibility to obtain
legal advice, representation and, if necessary, linguistic assistance – free of charge –
in accordance with rules set down in national law.
Article 9 of the directive provides that removal decisions have to be postponed if
they would breach the
non-refoulement principle and where persons are pursuing
a remedy with suspensive effect. Removal may, furthermore, be postponed due to
reasons specific to the person, such as state of health, and for technical obstacles to
removal. If removal is postponed, EU Member States need to provide written confir-
mation that the enforcement action is postponed (Article 14).
The
Return Directive does not apply to third-country nationals who are family
members of EU nationals who have moved to another EU Member State or of
other EEA/Swiss nationals whose situation is regulated by the
Free Movement
Directive (2004/38/EC). The
Free Movement Directive established procedural
safeguards in the context of restrictions on entry and residence on the grounds
of public policy, public security or public health. There must be access to judicial
and, where appropriate, administrative procedures when such decisions are made
(Articles 27, 28 and 31). Individuals must be given written notification of decisions
and must be able to comprehend the content and the implications. The notification
must specify procedural aspects concerning the lodging of appeals as well as time
frames (Article 30). Turkish citizens enjoy comparable protection.
Under the ECHR, in addition to considerations relating to Article 13 of the ECHR,
specific safeguards are set forth in Article 1 of Protocol No. 7 to the Convention that
need to be respected in cases of expulsion of lawfully residing aliens. Furthermore,
the ECtHR has held that Article 8 contains procedural safeguards to prevent arbitrary
interference with the right to private and family life. This can be relevant to indi-
viduals who have been in a state for some time and may have developed private
and family life there or who may be involved in court proceedings in that state.
Defects in the procedural aspects of decision making under Article 8 may result in
a breach of Article 8 (2) on the basis that the decision has not been in accordance
with the law.
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Handbook on European law relating to asylum, borders and immigration
Example:
C.G. v. Bulgaria186 concerned a long-term resident who was removed
for reasons of national security on the basis of a classified secret surveillance
report. The ECtHR held that a non-transparent procedure such as that used
in the applicant’s case did not amount to a full and meaningful assessment
required under Article 8 of the ECHR. Furthermore, the Bulgarian courts had
refused to gather evidence to confirm or dispel the allegations against
the applicant, and their decisions had been formalistic. As a result, the
applicant’s case had not been properly heard or reviewed, as required under
paragraph 1 (b) of Article 1 of Protocol No. 7.
Example: In
Anayo and
Saleck Bardi,187 both cases concerned the return of
third-country nationals in which children were involved. The ECtHR found
a breach of Article 8 of the ECHR in that there were defects in the decision-
making process, such as a failure to consider the best interests of the child or
lack of coordination between the authorities in determining such interests.
4.5. Legal assistance in asylum
and return procedures
Access to legal assistance is a cornerstone of access to justice. Without access to
justice, the rights of individuals cannot be effectively protected.188 Legal support is
particularly important in asylum and return proceedings where language barriers
may make it difficult for the persons concerned to understand the often complex or
rapidly implemented procedures.
Under the ECHR, the right of access to a court is derived from the right to a fair
trial – a right which holds a prominent position in any democracy.189 The right of
access to a court, which is one aspect of Article 6 of the ECHR, has been held as
inapplicable to asylum and immigration proceedings because the proceedings do
not concern the determination of a civil right or obligation, or a criminal charge.190
It does not follow, however, that the principles of ‘access to court’ the Court has
186 ECtHR
, C.G. and Others v. Bulgaria, No. 1365/07, 24 April 2008.
187 ECtHR
, Anayo v. Germany, No. 20578/07, 21 December 2010; ECtHR,
Saleck Bardi v. Spain,
No. 66167/09, 24 May 2011.
188 For more information, see: FRA (2010b); FRA (2011c).
189 ECtHR
, Airey v. Ireland, No. 6289/73, 9 October 1979.
190 ECtHR
, Maaouia v. France, No. 39652/98, 5 October 2000, para. 38.
106
Procedural safeguards and legal support in asylum and return cases
developed under Article 6 of the ECHR are irrelevant to Article 13. In terms of pro-
cedural guarantees, the requirements of Article 13 are less stringent than those of
Article 6, but the very essence of a ‘remedy’ for the purposes of Article 13 is that it
should involve an accessible procedure.
Example: In
G.R. v. the Netherlands,191 the Court found a violation of
Article 13 of the ECHR on the issue of the effective access to the administrative
procedure for obtaining a residence permit. The Court noted that, although
“available in law”, the administrative procedure for obtaining a residence
permit and the exemption from paying the statutory charges were not
“available in practice”, due to the disproportionate administrative charge
relative to the actual income of the applicant’s family. The Court also
underlined the formalistic attitude of the competent minister who did not
fully examine the indigent state of the applicant. The ECtHR reiterated that
the principles of ‘access to court’ developed under Article 6 were also relevant
for Article 13. This overlap was therefore to be interpreted as requiring an
accessible procedure.
In its case law, the ECtHR has referred to Council of Europe recommendations on
legal aid to facilitate access to justice, in particular for the very poor.192
Example: In
M.S.S. v. Belgium and Greece,193 the ECtHR held that the applicant
lacked the practical means to pay a lawyer in Greece, where he had been
returned; he had not received information concerning access to organisations
offering legal advice and guidance. Compounded by the shortage of legal aid
lawyers, this had rendered the Greek legal aid system as a whole ineffective in
practice. The ECtHR concluded that there had been a violation of Article 13 of
the ECHR taken in conjunction with Article 3.
Under EU law, the EU Charter of Fundamental Rights marks a staging post in the
development of the right to legal aid and assistance under EU law. According to
its Article 51, the Charter only applies when EU Member States implement EU law.
191 ECtHR.
G.R. v. the Netherlands, No. 22251/07, 10 January 2012, paras. 49-50.
192 Council of Europe, Committee of Ministers (1981) Recommendation No. R (81)7 of the Committee of
Ministers to member states on measures facilitating access to justice; ECtHR,
Siałkowska v. Poland,
No. 8932/05, 22 March 2007.
193 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011, para. 319.
107
Handbook on European law relating to asylum, borders and immigration
Article 47 of the Charter provides that “[e]veryone shall have the possibility of be-
ing advised, defended and represented […]” and that “[l]egal aid shall be made
available to those who lack sufficient resources in so far as such aid is necessary to
ensure effective access to justice […]”.
The right to a fair hearing under EU law applies to asylum and immigration cases,
which is not the case under the ECHR. The inclusion of legal aid in Article 47 of the
EU Charter of Fundamental Rights reflects its historical and constitutional signifi-
cance. The Explanatory Report on Article 47 in regard to its legal aid provision men-
tions Strasbourg case law – specifically the
Airey case.194 Legal aid in asylum and
immigration cases is an essential part of the need for an effective remedy and the
need for a fair hearing.
4.5.1. Legal assistance in asylum procedures
Under EU law, Article 15 (1) of the
Asylum Procedures Directive entitles applicants
to consult with a legal adviser on matters relating to their application. In the case of
a negative decision by the administration, EU Member States shall ensure that free
legal assistance and/or representation be granted to applicants in order to lodge
an appeal. Member States may require that certain conditions be fulfilled, such
as monetary matters or time limits. The
Asylum Procedures Directive also allows
Member States to provide legal assistance only to those appeals that are likely to
succeed.
Article 16 of the directive also makes provision for the scope of legal assistance
and representation, including allowing the legal adviser to access the applicant’s
file information, as well as practical access to the client if held or detained in
closed areas, such as detention facilities and transit zones. There is provision for
EU Member States to set down rules on legal adviser attendance at the personal
asylum interview.
The Council of Europe Guidelines on Human Rights Protection in the Context
of Accelerated Asylum Procedures195 also recognise the right to legal aid and
assistance.
194 ECtHR
, Airey v. Ireland, No. 6289/73, 9 October 1979.
195 Council of Europe, Committee of Ministers (2009),
Guidelines on human rights protection in the context
of accelerated asylum procedures, 1 July 2009.
108
Procedural safeguards and legal support in asylum and return cases
4.5.2. Legal assistance in return decisions
Under EU law, the provision of legal assistance is not limited to asylum decisions
but also includes return decisions. This is notable as it allows individuals to seek ju-
dicial review of a removal decision. Some individuals, who are recipients of a return
decision made under the
Return Directive, may never have had an appeal or any
judicial consideration of their claims. Some of these individuals may have formed
families during their time in the EU Member State and will require access to a court
to determine the compatibility of the return decision with human rights. As such,
Article 13 of th
e Return Directive states that EU Member States ‘shall ensure that
the necessary legal assistance and/or representation is granted on request free
of charge’ in accordance with relevant national legislation and within the terms of
Article 15 (3) (6) of the
Asylum Procedures Directive.
These provisions note that legal aid should be made available on request. This en-
tails individuals being informed about the provision of legal aid in clear and simple
language that they understand, as otherwise the rules would be rendered mean-
ingless and hamper effective access to justice.
The Council of Europe Twenty Guidelines on Forced Return (Guideline 9) also fore-
sees legal assistance.196
4.5.3. Legal assistance to challenge asylum support
decisions
Under EU law, a decision to refuse asylum support taken under th
e Reception Con-
ditions Directive may be challenged by the affected individual. The directive, how-
ever, lays down a broad rule that appeals against negative decisions must be laid
down in national law (Article 21), including the procedures for access to legal as-
sistance in such cases.
Asylum seekers who are refused asylum support or welfare benefits should be able
to challenge such decisions, as they may otherwise be forced into destitution. This
could then constitute a separate breach of their rights under articles such as Arti-
cle 3 of the ECHR or Article 4 of the EU Charter of Fundamental Rights.197
196 Council of Europe, Committee of Ministers (2005).
197 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011; CJEU, Joined Cases C-411/10
and C-493/10
, N.S. v. Secretary of State for the Home Department and M.E. and Others v. Refugee
Applications Commissioner & Minister for Justice, Equality and Law Reform, 21 December 2011.
109
link to page 239 link to page 239 link to page 219
Handbook on European law relating to asylum, borders and immigration
Key points
•
EU law requires fair and efficient procedures in the context of both examining an
asylum claim and examining returns (see Sections 4.1.1 and 4.4).
•
Article 13 of the ECHR requires an effective remedy before a national authority, in
respect of any arguable complaint under any provision of the ECHR or its protocols.
In particular, it requires independent and rigorous scrutiny of any claim that there
exist substantial grounds for fearing a real risk of treatment contrary to Article 2 or
Article 3 of the ECHR in the event of an individual’s expulsion or extradition (see
Section 4.1.2).
•
Article 13 of the ECHR requires a remedy with automatic suspensive effect when
the implementation of a return measure against him or her might have potentially
irreversible effects (see Section 4.1.3).
•
Article 47 of the EU Charter of Fundamental Rights requires a judicial remedy
and contains more extensive fairness safeguards than Article 13 of the ECHR (see
Section 4.1.2).
•
There are procedural safeguards under EU law in respect of the entitlement to and
withdrawal of support and benefits for asylum seekers (see Section 4.3).
•
Lack of legal assistance may raise an issue under Article 13 of the ECHR as well as
Article 47 of the EU Charter of Fundamental Rights (see Section 4.5).
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
110
5
Private and family life
and the right to marry
EU
Issues covered
CoE
EU Charter of Fundamental
The right to
ECHR, Article 12
Rights, Article 9 (right to marry
marry and to
(right to marry)
and right to found a family)
found a family
ECtHR,
O’Donoghue v. the
Council Resolution 97/382/01 on
United Kingdom, 2010
measures to be adopted on the
(obstacles to the right to marry)
combating of marriages of convenience
EU Charter of Fundamental Rights,
Family
ECHR, Article 8 (right to respect
Article 7 (respect for private and family life) regularisation
for private and family life)
Family members of EEA nationals
ECtHR,
Rodrigues da Silva
exercising free movement rights:
v. the Netherlands, 2006
Free Movement Directive (2004/38/EC)
(best interest of the child)
ECJ, C-127/08,
Metock, 2008 (previous
ECtHR,
Darren Omoregie and
lawful stay of third-country
Others v. Norway, 2008 (strong
national family member in EU
ties of Nigerian spouse with
Member States is not required)
his country of origin)
ECJ, C-60/00,
Mary Carpenter, 2002
ECtHR,
Nuñez v. Norway, 2011
(third-country national spouse can
(family life in Norway)
remain with the children in spouse’s
home country when husband moves
to another EU Member State)
ECJ, C-59/85,
State of the
Netherlands, 1986 (registered partners)
CJEU, C-34/09,
Ruiz
Zambrano, 2011 (children at risk of
losing the benefits of EU citizenship)
CJEU, C-256/11,
Murat Dereci, 2011
(spouse and children)
111
Handbook on European law relating to asylum, borders and immigration
EU
Issues covered
CoE
Family members of third-
country national sponsors:
Family Reunification
Directive (2003/86/EC)
(the family member has normally to
apply from outside the country)
Family members of EEA nationals
Family
ESC, Article 19 (6) (family
exercising free movement rights:
reunification
reunion of foreign workers)
Free Movement Directive (2004/38/EC)
ECtHR,
Gül v.
CJEU,
Chakroun, 2010 (it does not matter
Switzerland, 1996 (left
whether the family was created before or
behind children)
after the third-country national arrived)
ECtHR,
Sen v. the Netherlands,
Family members of third-
2001 (left behind children)
country national sponsors:
ECtHR,
Osman v. Denmark,
Family Reunification Directive
2011 (teenager re-joins
(2003/86/EC)
family in Denmark)
EU Charter of Fundamental Rights,
Protection from ECHR, Article 8 (right to respect
Article 7 (respect for private and family life)
expulsion
for private and family life)
Family members of EEA nationals
Relationship
ECtHR,
Berrehab v.
exercising free movement rights:
breakdown cases the Netherlands, 1988
Free Movement Directive
(maintaining contact
(2004/38/EC), Article 13
with children)
Family members of third-
ECtHR,
Sorabjee v. the United
country national sponsors:
Kingdom, 1995 (divorce)
Family Reunification Directive
(2003/86/EC), Article 15
Family members of EEA nationals
Criminal
ECtHR,
Boultif v.
exercising free movement rights:
conviction cases Switzerland, 2001 (criteria
Free Movement Directive
to assess proportionality
(2004/38/EC), Articles 27-33
of expulsion)
Family members of third-
ECtHR,
Üner v. the
country national sponsors:
Netherlands, 2006 (criteria
to assess barriers deriving
Family Reunification Directive
from the right to family
(2003/86/EC), Article 6 (2)
and private life)
Introduction
This chapter will look at the right to respect for private and family life as well as the
right to marry and to found a family. It also examines questions relating to family
regularisation and reunification as well as safeguards to preserve family unity.
Under the ECHR,
the right to respect for “private and family life” is guaranteed by
Article 8 of the ECHR. The notion of ‘private life’ is wide and an exhaustive definition is
112
Private and family life and the right to marry
not easily found. It covers the physical and psychological integrity of a person, a right
to personal development and the right to establish and develop relationships with
other human beings and the outside world.198 Aside from possible ‘family life’, the
expulsion of a settled migrant might constitute an interference with his or her right
to respect for ‘private life’, which may or may not be justified, depending on the facts
of the case. Whether it is appropriate for the Court to focus on the ‘family life’ rather
than the ‘private life’ aspect will depend on the circumstances of a particular case.199
Example: In
Omojudi v. the United Kingdom,200 the Court reaffirmed that
Article 8 of the ECHR also protected the right to establish and develop
relationships with other human beings and the outside world, and could also
embrace aspects of an individual’s social identity. It must be accepted that the
totality of social ties between settled migrants and the community in which
they were living constituted part of the concept of ‘private life’ within the
meaning of Article 8, regardless of the existence of a ‘family life’.
Under EU law, the EU Charter of Fundamental Rights enshrines the right to marry
and to found a family (Article 9) and the right to respect for family life (Article 7)
and also protects the rights of the child (Article 24), particularly the right to main-
tain contact with both parents (Article 24 (3)).
In relation to migration, the first measure on the free movement of persons adopt-
ed over 40 years ago (Regulation 1612/68) included the express right for a Euro-
pean migrant worker to be accompanied not only by his or her spouse and their
children under the age of 21 years but also by dependent children over that age
and dependent parents and grandparents. Registered partners are now included,
and the admission and authorisation of other family members must be facilitated.
The nationality of family members was – and is – immaterial to this right. Since the
majority of national immigration policies seek to restrict the movement of third-
country nationals, much of the EU litigation has involved the rights of third-country
national family members rather than the EEA nationals themselves.
The question for the CJEU has been whether restrictions on family migration may
act as a discouragement to EU citizens to exercise their rights to free movement
198 ECtHR
, Pretty v. the United Kingdom, No. 2346/02, 29 April 2002, para. 61.
199 ECtHR
, A. A. v. the United Kingdom, No. 8000/08, 20 September 2011; ECtHR
, Rachwalski and Ferenc
v. Poland [GC], No. 46410/99, 18 October 2006.
200 ECtHR
, Omojudi v. the United Kingdom, No. 1820/08, 24 November 2009, para. 37.
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or will impede the enjoyment of EU citizenship. Paradoxically, in many EU Mem-
ber States EU nationals exercising free movement rights enjoy far greater rights to
family reunification than the states’ own nationals do. Family reunification for EU
nationals who have not made use of free movement rights is regulated by national
law, which remains more restrictive in some EU Member States.
There are also special provisions for the family members of Turkish citizens under
Article 7 of Decision No. 1/80 of the Ankara Agreement. The adoption at EU level
of the
Long-Term Residents Directive (2003/109/EC) and the
Family Reunification
Directive (2003/86/EC concerning family members of third-country national spon-
sors – meaning the family member in the EU who requests family reunification) has
expanded EU competence in this field.
Finally, refugees have long been accorded special family reunion privileges in
European states, based on the impossibility of returning to their country of origin to
continue their family life. In this sense, special provisions for refugees are contained
in Chapter V of th
e Family Reunification Directive.
5.1. The right to marry and to found a family
The right to marry is enshrined in Article 12 of the ECHR and in EU law in Article 9 of
the EU Charter of Fundamental Rights. It concerns the right to form a marital
relationship and a family. This is quite distinct from the right to respect for family
life, which relates to families seeking immigration authorisation on the basis of an
existing family relationship.
European states have put in place restrictions on the right to marry, since marriages
of convenience are seen as a device for circumventing immigration controls.
A
sham marriage (or marriage of convenience) is a marriage entered into purely
for immigration purposes “with the sole aim of circumventing the rules on entry
and residence”201 and without any intention to cohabit or share the other social
characteristics of marriage. Knowingly facilitating a sham marriage is a criminal
offence in many jurisdictions.
201 Art. 1 of Council Resolution 97/C382/01 of 4 December 1997 on measures to be adopted on the
combating of marriages of convenience.
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Private and family life and the right to marry
Forced marriages occur when one (or both) of the spouses is an unwilling party to
the marriage. Coercing someone into a forced marriage is now a criminal offence in
many jurisdictions. In practice, it may be difficult to distinguish a forced marriage
from a marriage of convenience, particularly in the case of ‘arranged marriages’,
a term that can cover a variety of situations from something close to a forced mar-
riage to a system whereby the spouse freely and voluntarily selects a partner from
a short list of candidates proposed by their families after careful research as to their
suitability. Little exists in terms of European legislative measures or case law linked
to forced marriages.202
Example: In the
Quila case,203 the United Kingdom Supreme Court was
asked whether the ban on the entry for settlement of foreign spouses or
civil partners contained in paragraph 277 of the Immigration Rules – under
which the minimum age of both parties to enter and settle had been raised
from 18 to 21 years – was a lawful way of deterring or preventing forced
marriages. Relying on ECtHR case law, the Supreme Court struck down the
provision, finding that the refusal to grant a marriage visa amounted to
a violation of Article 8 of the ECHR. In this case, there was no suspicion of
a forced marriage and, therefore, the Supreme Court found that there was no
logical connection between such a blanket rule that permitted no exceptions
and the incidence of forced marriage.
Under EU law, the perceived incidence of sham marriages for immigration purposes
led to the adoption at EU level of Council Resolution 97/C382/01. This resolution re-
flected the European states’ concern for marriages of convenience, and listed factors
which might provide grounds for believing that a marriage was one of convenience.
Legislation on the free movement of persons is generally silent about the possibili-
ties of immigration authorisation for a fiancé(e), preferring to focus on family regu-
larisation or reunification. Only the principle of non-discrimination would apply to
the situation of those seeking admission for future spouses from abroad.
Under the ECHR, it follows from ECtHR case law that a state may properly impose
reasonable conditions on the right of a third-country national to marry in order to
202 Council of Europe, Parliamentary Assembly, Resolution 1468 (2005) on Forced Marriages and Child
Marriages, 5 October 2005.
203 The United Kingdom Supreme Court
, R (Quila and another) v. Secretary of State for the Home
Department [2011] UKSC 45, 12 October 2011.
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ascertain whether the proposed marriage is one of convenience and, if necessary,
to prevent it. Consequently, a state is not necessarily in violation of Article 12 of
the ECHR if they subject marriages involving foreign nationals to scrutiny in order
to establish whether they are marriages of convenience. This may include requiring
foreign nationals to notify the authorities of an intended marriage and, if neces-
sary, asking them to submit information relevant to their immigration status and to
the genuineness of the marriage.
In a recent case, however, the ECtHR found that,
although not inherently objectionable, the requirement for persons subject to im-
migration control to submit an application for a certificate of approval before being
permitted to marry in the United Kingdom gave rise to a number of grave concerns.
Example: The case of
O’Donoghue v. the United Kingdom204 concerned
impediments to contracting a marriage that were imposed by the United
Kingdom. Persons subject to immigration control were required to obtain the
immigration authorities’ permission before being able to contract a marriage
with civil validity, unless the persons opted to marry in a Church of England
ceremony. The ECtHR found that the scheme was not rationally connected to
the stated aim of reducing the incidence of sham marriages as, when deciding
whether to issue the required certificate, the determinative test considered
only the immigration status of the individual applicant and no enquiries were
made as to the genuineness of the marriage. The Court found that the scheme
violated Article 12 of the ECHR. It was also held to be discriminatory on the
ground of religion as only marriages celebrated in the Church of England were
exempt from the requirement to obtain a certificate of approval. The Court also
found that the fees charged for such certificates were excessively high and did
not provide waivers or fee reductions for needy persons.
Under the ECHR, complaints concerning the refusal to allow a fiancé(e) to enter
a country for the purpose of getting married are relatively rare.205
204 ECtHR
, O’Donoghue and Others v. the United Kingdom, No. 34848/07, 14 December 2010.
205 ECtHR
, Abdulaziz, Cabales, and Balkandali v. the United Kingdom, Nos. 9214/80, 9473/81 and 9474/81,
28 May 1985. This case initially concerned women (some of whom were not yet married) who found
themselves in a disadvantageous position when seeking to bring their fiancés or spouses to the United
Kingdom. By the time, the case came to be considered by the ECtHR, all the applicants were married and
the case was considered as one governing the rights of spouses.
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Private and family life and the right to marry
5.2. Family regularisation
Family regularisation describes situations where the resident sponsor wishes to reg-
ularise – as a family member – the situation of a family member who is already in
the territory in either some other capacity or in an irregular situation.
Under EU law, the rules set out in the
Free Movement Directive (2004/38/EC) ap-
ply to third-country nationals who are the family members of EEA nationals, albeit
in the case of EU citizens, the directive only applies if free movement rights have
been exercised by the individual concerned. For EEA citizens, the qualifying family
members are spouses, children under the age of 21, children aged over 21 years but
dependent (Articles 2 (2)) and “other family members” (Article 3 (2)). The category
of qualifying family members of Swiss nationals is somewhat more restrictive.206
The CJEU has provided clarification concerning “other family members”.
Example: In
Rahman,207 the CJEU clarified that Article 3 (2) of the
Free Movement
Directive not only makes it possible but also obliges EU Member States to confer
a certain advantage on applications for entry and residence submitted by those
other family members of an EU citizen who are dependent and can demonstrate
that their dependence existed at the time they sought entry. In order to meet that
obligation, EU Member States must ensure that their legislation contains measures
that enable the persons concerned to have their application for entry and residence
duly and extensively examined and to obtain, in the event of refusal, a reasoned
denial, which they are entitled to have reviewed before a judicial authority.
Third-country national family members of EEA nationals (including EU citizens but
only in so far as they have exercised free movement rights) are often in a privi-
leged situation compared to third-country nationals who are family members of
nationals of the country concerned, as their status is regulated purely by national
law. The right of third-country national family members to enter and reside exists
irrespective of when and how he or she entered the host country. It applies also to
persons who entered in an irregular manner.
206 Pursuant to the Agreement between the European Community and its Member States, on the one part,
and the Swiss Confederation, on the other, on the free movement of persons which was approved
by Decision 2002/309/EC regulating the free movement of persons between the EU and the Swiss
Confederation, family members include spouses, descendants who are under 21 years of age or who
are dependants, and dependent relatives in the ascending line, if accommodation and maintenance are
provided for (in the case of students, it covers only spouses and minor children).
207 CJEU, C-83/11,
Secretary of State for the Home Department v. Rahman and Others, 5 September 2012.
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Handbook on European law relating to asylum, borders and immigration
Example: The case of
Metock and Others208 concerned the third-country national
spouses of non-Irish EU citizen residents in Ireland. The Irish government argued
that, in order to benefit from the
Free Movement Directive, the third-country
national spouse had to have previously been lawfully resident in another EU
Member State, and that the right of entry and residence should not be granted
to those who entered the host Member State before becoming spouses of EU
citizens. The Court held that EU Member States could not make the right to live
together under the
Free Movement Directive conditional on matters such as when
and where the marriage had taken place or on the fact that the third-country
national had previously been lawfully resident in another EU Member State.
Example: In the case of
MRAX,209 the ECJ found that it would be unlawful to
refuse residence when third-country nationals married to EU citizens had
entered the country unlawfully after their visa had expired.
Over time, the CJEU has extended the scope of application of the rights and free-
doms deriving from the EU treaties to EU nationals, thus granting, under certain
conditions, derived rights to their third-country national family members.
Example: The case of
Carpenter210 concerned a third-country national wife of
a national of the United Kingdom whose business consisted of providing services,
for remuneration, in other Member States. It was argued successfully that, if his
wife was not permitted to remain with him in the United Kingdom and to look
after his children while he was away, he would be restricted in the exercise of
his freedom to provide services across the EU. In this case, the Court used the
freedom to provide services recognised by Article 56 of the TFEU to acknowledge
family rights to a Union citizen who had never lived abroad but who pursued
cross-border economic activity. The ECJ also referred to the fundamental right to
respect for family life as enshrined in Article 8 of the ECHR.
208 ECJ, C-127/08 [2008] ECR I-06241
, Metock and Others v. Minister for Equality, Justice and Law
Reform, 25 July 2008, paras. 53-54, 58.
Metock was followed b
y the Swiss Federal Supreme Court in its
decision BGE 136 II 5, 29 September 2009.
209 ECJ, C-459/99 [2002] ECR I-06591,
Mouvement contre le racisme, l’antisémitisme et la xénophobie
ASBL (MRAX) v. Belgian State, 25 July 2002, para. 80.
210 ECJ, C-60/00 [2002] ECR I-06279
, Mary Carpenter v. Secretary of State for the Home Department,
11 July 2002, paras. 36-46; ECJ, C-370/90 [1992] ECR I-04235,
The Queen v. IAT and Surinder Singh,
ex parte Secretary of State for the Home Department, 17 July 1992, concerning the possibility to claim
such rights for EU nationals returning to their home country.
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Private and family life and the right to marry
The CJEU has recognised that, under certain circumstances, residence rights may be
linked directly to the status of Union citizens under Article 20 of the TFEU, applying
it in cases where the EU national never exercised free movement rights.
Example: In
Ruiz Zambrano,211 the CJEU found that the third-country nationals,
who are parents of dependent minor children of Belgian nationality, had to be
granted a Belgian residence and work permit in order to live with and support
their children. Article 3 (1) of the
Free Movement Directive was held not to be
applicable because the children, who were Union citizens, had never moved to
or resided in a Member State other than their country of national origin. The
Court directly referred to their status as Union citizens under Article 20 of the
TFEU in order to grant their third-country national parents a permit to work and
reside in Belgium. A refusal to do so, the Court pointed out, would “deprive the
children of the genuine enjoyment of the substance of the rights attaching to
the status of Union citizens” in so far as they would have to leave the territory
of the European Union in order to accompany their parents.
This ruling, however, related to the specific circumstances of the case and does not
apply in all circumstances.
Example: In
McCarthy,212 two months after
Ruiz Zambrano, the CJEU ruled on
a case concerning a dual British/Irish national. Mrs McCarthy, who was born
in the United Kingdom and had always lived there, applied as an Irish citizen
for a right of residence in the United Kingdom for her and her third-country
national spouse. The permit was refused on the ground that she was not
a “qualified person”, such as a worker or a self-employed or self-sufficient
person. In this case, the Court affirmed that the
Free Movement Directive was
not applicable as Mrs McCarthy had never exercised her free movement rights,
clarifying that the fact of being an EU citizen who is a national of more than
one Member State is not sufficient in itself to conclude that she had made
use of her right to freedom of movement. The CJEU also did not find that
Articles 20 and 21 of the TFEU would entitle her to receive a residence right
in the United Kingdom for her husband as the refusal would not deprive her
of the genuine enjoyment of the substance of the rights associated with her
211 CJEU, C-34/09,
Ruiz Zambrano v. Office national de l’emploi, 8 March 2011; ECJ, C-200/02, [2004]
ECR I-09925,
Zhu and Chen v. Secretary of State for the Home Department,
19 October 2004, paras. 42-47.
212 CJEU, C-434/09,
McCarthy v. Secretary of State for the Home Department, 5 May 2011.
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Handbook on European law relating to asylum, borders and immigration
status as an EU citizen, nor would it impede the exercise of her right to move
and reside freely within the territory of the EU Member States.
Example: In
Dereci,213 shortly after the decision in
Ruiz Zambrano, the CJEU was
given the opportunity to pronounce itself on whether a third-country national
is allowed to reside in the EU Member State territory in which his spouse and
children – all EU citizens – are resident, even though they have never exercised
their rights to free movement and are not dependent on the third-country
national for their subsistence. The CJEU stated that Member States can refuse
a residence permit to a third-country national unless such refusal would, for
the EU citizen concerned, lead to the denial of the genuine enjoyment of the
substance of the rights conferred by virtue of his or her status as an EU citizen,
which is a matter for the referring court to verify. To guide such assessment,
the CJEU pointed out that “the mere fact that it might appear desirable to
a national of a Member State, for economic reasons or in order to keep his
family together in the territory of the Union, for the members of his family
who do not have the nationality of a Member State to be able to reside with
him in the territory of the Union, is not sufficient in itself to support the view
that the Union citizen will be forced to leave Union territory if such a right is not
granted”.
Example: In
Iida v. Ulm,214 a Japanese citizen moved to Germany with his
German wife and under-age daughter. His wife and daughter later moved to
Austria, while the applicant remained in Germany. Mr Iida and his wife were
permanently separated since 2008, although not divorced. In 2008, Mr Iida
applied for a residence card of a family member of a Union citizen, which was
refused by the German authorities. In these circumstances, the CJEU was asked
to ascertain whether a third-country national can be allowed to reside in the
state of origin of his family members, even though they had moved from the
Member State of origin and had been residing predominantly in another EU
Member State. The CJEU noted that a third-country national family member of
an EU citizen who has exercised free movement rights can only benefit from
Directive 2004/38 if he installs himself in the host Member State in which his
EU family member resides. The CJEU also noted that Mr Iida’s daughter cannot
claim residence rights for her father, as Article 2 (2) (d) of the directive only
213 CJEU, C-256/11
, Murat Dereci and Others v. Bundesministerium für Inneres, 15 November 2011,
para. 68.
214 CJEU, C-40/11,
Iida v. Stadt Ulm (City of Ulm), 8 November 2012.
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Private and family life and the right to marry
applies to direct relatives in the ascending line who are dependent on the child
and not to situations where a child is dependent on the parent.
The CJEU also looked at the case from the perspective of Articles 20 and 21 of
the TFEU. However, in the present case, the Court excluded a denial of Mr
Iida’s spouse and daughter genuine enjoyment of the substance of the rights
associated to their status of Union citizens. In so concluding, the CJEU took
into consideration the fact that the applicant was seeking a right of residence
in a Member State other than that in which his daughter and spouse were
residing, as well as the fact that Mr Iida was in principle eligible for being
granted an extension of his right of residence under national law, as well as
the status of long-term resident within the meaning of
Directive 2003/109/EC.
Article 2 (2) of the
Free Movement Directive includes “registered partners” among
the category of family members, provided this is consistent with the national law of
the host EU Member State. In certain circumstances, unregistered partners may also
be granted the right to join a citizen or settled migrant.
Example: In
State of the Netherlands v. Reed,215 the ECJ ruled that as Dutch
law permitted the stable partners of Dutch citizens to reside with them in
the Netherlands, the same advantage must be given to Ms Reed, who was in
a stable relationship with a worker from the United Kingdom exercising treaty
rights in the Netherlands. Permission for the unmarried companion to reside,
the Court held, could assist integration into the host state and thus contribute
to the achievement of the free movement of workers. Its denial amounted to
discrimination.
The
Family Reunification Directive regulates the situation of the spouse and unmar-
ried minor children of eligible third-country national sponsors. Article 5 (3) of the
directive requires that a family reunification application be submitted and examined
while the family member is still outside the EU Member State territory where the
sponsor resides. Member States can derogate from this provision. Family members
of EEA nationals, however, cannot be made subject to such a requirement.216
215 ECJ, C-59/85 [1986] ECR I-01283,
State of Netherlands v. Ann Florence Reed, 17 April 1986,
paras. 28-30.
216 ECJ, C-459/99 [2002] ECR I-6591,
MRAX, 25 July 2002; ECJ, C-503/03 [2006] ECR I-1097
, Commission v.
Spain, 31 January 2006.
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Handbook on European law relating to asylum, borders and immigration
Under the ECHR, Council of Europe Member States have the right to control the
entry, residence and expulsion of aliens. Article 8 of the ECHR nevertheless requires
Member States to respect family life and any interference with it must be justified
(see Section 5.4.2 for a list of criteria that may be relevant in the examination of
such cases). A considerable number of cases have been brought before the ECtHR,
raising issues relating to the refusal to admit or regularise the spouses or other fam-
ily members of Member States’ own citizens or settled migrants. One of the key
questions in deciding whether the Member State’s refusal was justified is whether
there are obstacles to conducting family life abroad. This may involve the citizen
leaving his or her own state, but if this is assessed as not being unreasonable, the
ECtHR will normally consider the Member State’s decision proportionate.217 The
Court’s case law in this area is closely tied to the particular features and facts of
each case (also see Section 5.4 for further examples).
Example: In
Darren Omoregie and Others v. Norway,218 the Court found that
the Norwegian wife of a Nigerian should not have had an expectation that her
husband would be allowed to live with her and their child in Norway despite
the fact that they had married while the husband was lawfully resident in the
country. The ECtHR took particularly into account the ties that the husband had
to his country of origin.
Example: In the case of
Nuñez v. Norway,219 the applicant entered Norway with
illegal documentation after having previously committed a criminal offence
there under a different name. The applicant then married a Norwegian national
and had two daughters. The Court found that Norway would violate Article 8 if
it expelled the applicant.
The refusal to regularise the situation of a foreign spouse following the break-
down of a marriage has been upheld by the Court, even if this may lead to the
de facto exile of child family members who are citizens of the host state (also see
Section 5.4.1).
217 ECtHR
, Darren Omoregie and Others v. Norway, No. 265/07, 31 July 2008, para. 68; ECtHR,
Bajsultanov v. Austria, No. 54131/10, 12 June 2012, para. 91; ECtHR,
Onur v. the United Kingdom,
No. 27319/07, 17 February 2009, paras. 60-61.
218 ECtHR
, Darren Omoregie and Others v. Norway, No. 265/07, 31 July 2008.
219 ECtHR
, Nunez v. Norway, No. 55597/09, 28 June 2011.
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Private and family life and the right to marry
Example: In
Sorabjee v. the United Kingdom,220 the former European
Commission of Human Rights declared the applicant’s Article 8 complaint,
concerning the deportation of her mother to Kenya, inadmissible. It found that
since the applicant was three years old, she was of an age at which she could
move with her mother and be expected to adapt to the change in environment.
Her British citizenship was irrelevant. This approach can be contrasted with the
CJEU decision in
Ruiz Zambrano (see the example above in this Section).
Where the national courts have considered, however, that a child should remain in
the state of residence, the ECtHR may be reluctant to condone the separation of the
family proposed by the immigration authorities.
Example: In
Rodrigues da Silva and Hoogkamer v. the Netherlands,221 the Court
found that, where the domestic courts had expressly ruled that it was in the
best interests of the child to remain in the Netherlands with her Dutch father,
it was disproportionate to refuse to regularise the situation of her Brazilian
mother with whom she had regular contact.
There are also situations that there may be an indirect interference with the right
to respect for family life, even if there is not an outright refusal to authorise a stay.
Example: The case of
G.R. v. the Netherlands222 looked at the interference
caused by charging excessively high fees for the regularisation of the
immigration situation of a foreign spouse. The Court decided to consider the
matter under Article 13 of the ECHR because the complaint related to the
applicant’s inability to challenge the refusal of his residence permit since his
application was rejected purely on the basis that he had failed to pay the
necessary fees.223
220 European Commission of Human Rights,
Sorabjee v. the United Kingdom (dec.),
No. 23938/94, 23 October 1995; European Commission of Human Rights,
Jaramillo v. the United
Kingdom (dec.), No. 24865/94, 23 October 1995.
221 ECtHR
, Rodrigues da Silva and Hoogkamer v. the Netherlands, No. 50435/99, 31 January 2006.
222 ECtHR
, G.R. v. the Netherlands, No. 22251/07, 10 January 2012.
223 ECtHR
, Anakomba Yula v. Belgium, No. 45413/07, 10 March 2009.
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Handbook on European law relating to asylum, borders and immigration
5.3. Family reunification
Family reunification describes situations where the person who is resident in an EU
or Council of Europe member state wishes to be joined by family members left be-
hind when he or she migrated.
Under EU law, the
Free Movement Directive’s provisions relating to the family
members of EEA nationals exercising treaty rights make no distinction between
family regularisation and reunification – it is the relationship between the family
member and the EU citizen sponsor which is determinative.
In relation to family members who are not part of the core family, the CJEU has
recently held that EU Member States have a wide discretion in selecting the fac-
tors to be considered when examining the entry and residence applications of the
persons envisaged in Article 3 (2) of the
Free Movement Directive. The Member
States are therefore entitled to lay down in their legislation particular requirements
as to the nature and duration of dependence. The CJEU has, however, also specified
that those requirements must be consistent with the normal meaning of the words
relating to the dependence referred to in Article 3 (2) of the directive and cannot
deprive that provision of its effectiveness.224
Under Article 4 of the
Family Reunification Directive, spouses and minor unmarried
children are entitled to join an eligible third-country national sponsor, but EU Mem-
ber States can impose conditions relating to the resources that the sponsor must
have at his or her disposal. The directive states that where a child is over 12 years
old and arrives independently from the rest of his or her family, the Member State
may, before authorising entry and residence under the directive, verify whether
the child meets a condition for integration provided for by its national legislation
existing on the date of implementation of the directive. The ECJ dismissed an action
brought by the European Parliament alleging that these restrictive provisions of the
directive violated fundamental rights. The ECJ did stress, however, that there are
a set of requirements that Member States need to follow when implementing it.225
Article 4 (5) of the
Family Reunification Directive allows EU Member States to re-
quire the sponsor and his or her spouse to be of a minimum age, which cannot be
224 CJEU, C-83/11,
Secretary of State for the Home Department v. Rahman and Others, 5 September 2012,
paras. 36-40.
225 ECJ, C-540/03, [2010] ECR I-05769
, European Parliament v. Council, 27 June 2006, paras. 62-65.
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Private and family life and the right to marry
set higher than 21 years of age, before the spouse can join him or her. A number of
European states seem to be adopting legislation raising the age of marriage visas.
EU law does not draw a distinction between whether a family relationship was con-
cluded before or after the sponsor took up residence in the territory.226
With regard to the family members of third-country nationals living in the EU, the
E
U Family Reunification Directive specifically states in Article 2 (d) that the directive
applies irrespective of whether the family was formed before or after the migrant
arrived in the home country, although legislation in some Member States does
make a clear distinction. This distinction is also not relevant for qualifying third-
country national family members of EEA citizens.
Example: In
Chakroun,227 the CJEU addressed Dutch legislation that made
a distinction between family “formation” and “reunification”, each of which has
different residence regimes, including financial requirements. Such distinction
depended exclusively on whether the relationship was entered into before
or after the sponsor’s arrival to take up residence in the host state. Since the
couple, in this specific case, had married two years after the sponsor’s arrival in
the Netherlands, their situation was treated as family formation and not family
reunification, despite the couple having been married for over 30 years at the
time of the disputed decision.
The Court confirmed that the right of a qualifying sponsor under the
Family
Reunification Directive to be joined by qualifying third-country national family
members existed whether or not the family relationship arose before or after
the sponsor’s entry. The Court took into account the lack of such a distinction
existing in EU law (Article 2 (d) and Recital 6 of the directive and Article 7 of
the EU Charter of Fundamental Rights) and the necessity not to deprive the
directive’s provisions of their effectiveness.
The
Free Movement Directive and, before its adoption, Regulation 1612/68 make
clear that the spouses of EEA nationals are entitled to reside with them, but
EEA nationals exercising free movement rights are also to be given the same “social
226 ECJ, C-127/08 [2008] ECR I-06241
, Metock and Others v. Minister for Equality, Justice and Law
Reform, 25 July 2008.
227 CJEU, C-578/08, [2010] ECR I-01839
, Chakroun v. Minister van Buitenlandse Zaken, 4 March 2010.
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Handbook on European law relating to asylum, borders and immigration
and tax advantages” as their host states’ own citizens, including the benefit of any
immigration rules applicable to situations not covered by the express terms of the
directive.228
Under the ECHR,
the Court has considered a number of cases that concerned the
refusal to grant visas for spouses, children or elderly relatives left behind and with
whom the applicant had previously enjoyed family life abroad.
Regarding spouses who have been left behind, many of the same arguments that
are raised by Council of Europe member states – and accepted by the ECtHR – in
family regularisation cases are also applied to reunification cases. Spouses resident
in Council of Europe member states, who have contracted marriages with part-
ners who are abroad, may be expected to relocate abroad unless they can dem-
onstrate that there are serious obstacles to this, particularly if they should have
known about the restrictive immigration rules. Member states are not obliged to
respect the choice of married couples to reside in a certain country, nor to accept
the non-national spouses for settlement. If a member state, however, decides to
enact legislation conferring the right to be joined by spouses to certain categories
of immigrants, it must do so in a manner compatible with the principle of non-
discrimination enshrined in Article 14 of the ECHR.229
A common feature of migration is leaving children behind: parents migrate to es-
tablish themselves in the host country but leave their children behind, often in the
care of a grandparent or other relative, until they have legally, socially and eco-
nomically established and secured themselves enough to be able to bring their chil-
dren to join them. The ECtHR’s approach in this type of case largely depends on the
specific circumstances of each particular case.
Example: In
Gül v. Switzerland,230 a child had been left behind in Turkey with
relatives when first her father and then her mother migrated to Switzerland.
As a result of serious injuries in a fire, the mother was granted a humanitarian
permit in Switzerland as the authorities at the time considered that her physical
well-being would be jeopardised if she were to return to Turkey. Her husband
was therefore offered a residence permit to stay with her. They applied to have
their left-behind child join them, but, although both parents were lawfully
228 EFTA Court,
Clauder, No. E-4/11, 26 July 2011, para. 44.
229 ECtHR,
Hode and Abdi v. the United Kingdom, No. 22341/09, 6 November 2012, paragraphs 43-55.
230 ECtHR
, Gül v. Switzerland, No. 23218/94, 19 February 1996.
126
Private and family life and the right to marry
resident in Switzerland, their status had not made them eligible for family
reunion. Having considered the particular issues and circumstances of the case,
the ECtHR found that there was no real reason why the whole family could not
relocate to Turkey, given that the mother’s health had appeared to stabilise. It
thus found that the refusal to allow the child to join the parents had not been
in violation of Article 8 of the ECHR.
Example: In
Sen v. the Netherlands,231 the eldest daughter was left behind
in Turkey when the parents came to the Netherlands. The Court found that
the parents’ decision to leave their daughter behind could not be considered
irrevocable with the effect that she should remain outside the family group. In
the particular circumstances, the Dutch authorities’ refusal to allow her to join
her parents in that country amounted to a violation of Article 8 of the ECHR.
Example: In
Osman v. Denmark,232 the Court considered a case where a Somali
teenage schoolgirl – a long-term lawful resident with her family in Denmark
– had been taken from Denmark by her father to provide full-time care to her
elderly grandmother in a refugee camp in Kenya. When, after two years, she
applied for a new residence permit to rejoin her family in Denmark, the Danish
authorities rejected her application. The Court found a violation of Article 8 of
the ECHR.
Under the ESC, Article 19 (6) guarantees the right to family reunion. The ECSR has
stated the following as regards conditions and restrictions of family reunion:
a) refusal on health grounds may only be admitted for specific illnesses which are
so serious as to endanger public health;233
b) a requirement of suitable housing should not be so restrictive as to prevent any
family reunion;234
231 ECtHR,
Sen v. the Netherlands, No. 31465/96, 21 December 2001.
232 ECtHR
, Osman v. Denmark, No. 38058/09, 14 June 2011.
233 See ECSR, Conclusions XVIII-1 (Turkey), Articles 1, 12, 13, 16 and 19 of the Charter, 1998,
Article 19 “Conditions of family reunion”.
234 See ECSR, Conclusions 2011 (Belgium), Articles 7, 8, 16, 17 and 19 of the Revised Charter, January 2012,
Article 19, para. 6.
127
Handbook on European law relating to asylum, borders and immigration
c) a requirement of a period of residence of more than one year for migrant work-
ers wishing to be joined by members of their family is excessive and, conse-
quently, in breach of the ESC;
d) migrant workers who have sufficient income to provide for the members of their
families should not be automatically denied the right to family reunion because
of the origin of such income, in so far as they are legally entitled to the benefits
they may receive;
e) a requirement that members of the migrant worker’s family sit language and/
or integration tests in order to be allowed to enter the country, or a requirement
that they sit (and pass) these tests once they are in the country in order to be
granted leave to remain constitutes a restriction likely to deprive the obligation
laid down in Article 19 (6) of its substance and is consequently not in conformity
with the ESC.235
5.4. Maintaining the family – protection
from expulsion
Many cases arise in which the third-country national’s spouse or parent is
threatened with expulsion, or is expelled, in situations where this could have serious
repercussions for existing family life. Such situations often arise in the following
two scenarios, which themselves can also be interrelated:
a) the relationship on which the permission to reside was based has broken down
and the couple are separated or divorced – there will typically be children from
the relationship who have contact rights with both parents;
b) the third-country national family member has committed criminal offences that
have attracted a deportation order. The question is whether the right to respect
for family life makes the deportation disproportionate.
It may also simply be a case of the authorities deciding that the family member no
longer complies with the requirements that originally authorised his or her stay.
235 For a recent statement on these principles, see ECSR, Conclusions 2011, General Introduction,
January 2012, Statement of interpretation on Art. 19 (6).
128
Private and family life and the right to marry
In these cases, it is necessary to look at the specifics of the situation of the person
concerned.
Example: In the
Pehlivan case before the CJEU,236 a Turkish national who joined
her parents in the Netherlands could validly claim a right of residence in the
host EU Member State notwithstanding the fact that she married before the
expiry of the three-year period laid down in the first paragraph of Article 7 of
Decision No. 1/80 of the Association Council. The three-year period refers to
the initial three years of residence before the individual can access the labour
market and during which time the EU Member State can impose conditions on
the individual. Throughout that period, the applicant lived together with her
parents through whom she was admitted to the Netherlands on the ground of
family reunification.
5.4.1. Relationship breakdown
Where the third-country national has not yet obtained a residence permit in his or
her own right but the relationship establishing a basis for residence breaks down,
the foreign partner may lose the right to continue to reside.
Under EU law, the relationship continues to justify the residence of the separated third-
country national until the marriage on which it is based is legally dissolved (
Free Move-
ment Directive).237 Relationship breakdown is not sufficient to justify loss of residence.
Article 13 of th
e Free Movement Directive provides for the retention of a right of
residence for third-country national family members, in the event of divorce or an-
nulment where the marriage has lasted three years, one year of which was spent
in the host state, or where there are children of the marriage necessitating the
presence of the parents. Th
e Free Movement Directive contains a specific provision
aimed at protecting residence status for third-country national victims of domestic
violence whose partner is an EEA national (Article 13 (2) (c)).
The
Family Reunification Directive also provides for the possibility of granting
a residence permit to foreign partners in cases where the relationship with the
sponsor breaks down due to death, divorce or separation. A duty to grant a separate
236 CJEU, C-484/07,
Fatma Pehlivan v. Staatssecretaris van Justitie, 16 June 2011.
237 ECJ, C-267/83 [1983] ECR I-00567,
Aissatou Diatta v. Land Berlin, 13 February 1985.
129
Handbook on European law relating to asylum, borders and immigration
permit only exists after five years of residence (Article 15). According to Arti-
cle 15 (3) of the directive, EU Member States should lay down provisions ensuring
that an autonomous residence permit is granted in the event of particularly diffi-
cult circumstances following divorce or separation. Like Article 13 (2) (c) of the
Free Movement Directive, this is intended to extend to situations of domestic violence,
although Member States have discretion as to what provisions are introduced.
Under the ECHR, the ECtHR considers whether family life and the need to maintain
contact with the children demand that the third-country national should be allowed
to remain. This is different from the national law of many Member States, where
relationship breakdown can lead to the loss of residence rights for third-country na-
tional spouses or parents. Often the Court sees no reason why contact should not be
maintained through visits,238 but it will consider that some situations may require
the third-country national to be permitted to remain.
Example: In
Berrehab v. the Netherlands,239 the Court held that Article 8 of
the ECHR prevented the Netherlands from expelling a father who, despite his
divorce, maintained contact with his child four times a week.
5.4.2. Criminal convictions
An EU Member State may wish to deport a lawfully resident third-country national
who has committed criminal offences.
Under EU law, Articles 27-33 of th
e Free Movement Directive confer on qualifying fam-
ily members the same – derived – enhanced protection from expulsion as EEA nationals
themselves enjoy. For example, any attempt to restrict the freedom of movement and
residence of EU citizens and their family members on grounds of public policy or public
security must be based on the fact that the personal conduct of the individual con-
cerned represents a genuine, present and sufficiently serious threat. Previous criminal
convictions cannot in themselves constitute grounds for taking such measures.
Under Article 28 (3) (b) of the directive, minor children can only be expelled on
imperative grounds of national security, unless the expulsion is in the child’s best
interests.
238 ECtHR
, Rodrigues da Silva and Hoogkamer v. the Netherlands, No. 50435/99, 31 January 2006.
239 ECtHR
, Berrehab v. the Netherlands, No. 10730/84, 21 June 1988.
130
Private and family life and the right to marry
Family members of Turkish nationals, regardless of their nationality, who have
achieved stable residence are similarly protected.240
Article 6 (2) of th
e Family Reunification Directive allows Member States to withdraw
or refuse to renew a family member’s residence permit on grounds of public policy,
public security or public health. When making a decision on this basis, the Member
State must consider the severity or type of offence against public policy or public se-
curity committed by the family member, or the dangers emanating from such person.
Under the ECHR, the Court will first decide whether it is reasonable to expect the
family to accompany the offender overseas, and, if not, whether the criminal con-
duct still justifies expulsion when it is clear that this will cause total separation of
the family. In these situations, the conclusion reached by the ECtHR is closely tied
to the details of each case. The ECtHR has adopted various criteria for assessing the
proportionality of an expulsion order. These include:
- the nature and seriousness of the offence committed by the applicant in the
expelling state;
- the length of the applicant’s stay in the country from which he or she is to be
expelled;
- the time elapsed since the offence was committed and the applicant’s conduct
during that period;
- the nationalities of the applicant and any family members concerned;
- the solidity of his, her or their social, cultural and family ties with the host coun-
try and with the country of destination;
- the best interests and well-being of any children involved, in particular any dif-
ficulties they would encounter if they had to follow the applicant to the country
to which he or she is to be expelled.241
240 CJEU, C-451/11,
Natthaya Dülger v. Wetteraukreis, 19 July 2012.
241 ECtHR
, Boultif v. Switzerland, No. 54273/00, 2 August 2001; ECtHR
, Üner v. the Netherlands [GC],
No. 46410/99, 18 October 2006; ECtHR,
Balogun v. the United Kingdom, No. 60286/09, 10 April 2012,
paras. 43-53.
131
Handbook on European law relating to asylum, borders and immigration
Example: The case of
A. A. v. the United Kingdom242 concerned a Nigerian
national who had come to the United Kingdom as a child to join his mother and
siblings and was granted permanent residence. He committed a serious offence
as a schoolboy and served his sentence. He went on to become a model of
rehabilitation, committed no further offences, obtained a university degree and
found stable employment. He did this by the time his deportation, which was
based on the offence he had committed as a juvenile, was ordered. The ECtHR
noted the applicant’s previous conviction and his exemplary rehabilitation, and
stressed the significance of the period of time since the offence was committed
and the applicant’s conduct throughout that period. It concluded that, in this
particular circumstance, the applicant’s expulsion would have constituted
a violation of Article 8 of the ECHR.
Example: In
Antwi and Others v. Norway,243 the applicants were a Ghanaian
national and his wife and daughter, who were Norwegian nationals. The
ECtHR held that there was no violation of Article 8 of the ECHR following the
authorities’ decision to expel Mr Antwi and to prohibit his re-entry into Norway
for five years after they discovered that his passport was forged. The Court
held that since both parents had been born and brought up in Ghana (the wife
having left the country when she was 17) and had visited the country three
times with their daughter, there were no insurmountable obstacles to them
settling together in Ghana or, at the least, maintaining regular contact.
Example: In
Amrollahi v. Denmark,244 the applicant was an Iranian national with
permanent residence in Denmark. He had two children with his Danish partner
and another child living in Denmark from a previous relationship. Upon his
release from prison following a conviction for drug trafficking, the authorities
sought to deport him to Iran. The ECtHR held that this would violate Article 8 of
the ECHR because the applicant’s proposed permanent exclusion from Denmark
would separate the family. It was effectively impossible for them to continue
their family life outside Denmark since the applicant’s wife had never been to
Iran, did not understand Farsi and was not a Muslim. Apart from being married
to an Iranian man, she had no ties with the country.245
242 ECtHR
, A. A. v. the United Kingdom, No. 8000/08, 20 September 2011.
243 ECtHR
, Antwi and Others v. Norway, No. 26940/10, 14 February 2012.
244 ECtHR
, Amrollahi v. Denmark, No. 56811/00, 11 July 2002.
245 For other similar judgments, see ECtHR,
Beldjoudi v. France, No. 12083/86, 26 March 1992; ECtHR,
Boultif v. Switzerland, No. 54273/00, 2 August 2001.
132
link to page 239 link to page 239 link to page 219
Private and family life and the right to marry
Key points
•
Family reunification of EU nationals who have not exercised free movement rights
is not covered by EU law. In some EU Member States, EU nationals exercising free
movement rights enjoy far greater rights to family reunion than the states’ own
nationals do (see Introduction to this chapter).
•
The
Free Movement Directive applies to qualif ying family members of
EEA nationals and of EU citizens, in so far as those EU citizens have exercised free
movement rights, irrespective of their own nationality. It confers on qualifying
family members the same – derived – enhanced protection from expulsion as the
EEA nationals themselves enjoy (see Section 5.2).
•
Family reunification of third-country national sponsors is regulated by the
Family Reunification Directive. In principle, it requires the family member to be outside
the country, although Member States can derogate from such requirement (see
Section 5.3).
•
For family reunification purposes, EU law does not draw a distinction between
whether a family relationship was concluded before or after the sponsor took up
residence in the territory (see Section 5.3).
•
The ECHR has elaborated criteria to assess the proportionality of an expulsion
decision, bearing in mind the right to respect for private and family life guaranteed
by Article 8 of the ECHR. The ECtHR’s approach to the expulsion of family members
or to family reunification depends on the specific factual circumstances of each
case (see Section 5.2 and/or 5.4.1).
•
The ESC provides for a right to family reunion and the case law of the ECSR
circumscribes the conditions and restrictions that may be applied to such reunion
(see Section 5.3).
•
Under the ECHR, a blanket prohibition to marry based on the person’s immigration
status may not be acceptable (see Section 5.1).
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law
of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
133
6
Detention and restrictions
to freedom of movement
EU
Issues covered
CoE
Reception Conditions Directive
Definitions: detention ECHR, Article 5 (right to
(2003/9/EC), Article 2 (k)
or restriction on
liberty and security)
free movement
ECHR, Article 2 of Protocol No. 4,
(freedom of movement)
Return Directive
Alternatives to
ECtHR,
Mikolenko v. Estonia, 2010
(2008/115/EC), Article 15 (1)
detention
(necessary examination of
alternatives to detention)
Return Directive
Exhaustive list of
ECHR, Article 5 (1) (a)-(f)
(2008/115/EC), Article 15 (1)
exceptions to the
(right to liberty and security)
right to liberty
Schengen Borders Code,
Detention to prevent
ECHR, Article 5 (1) (f) (right to
Article 13 (refusal of entry)
an unauthorised entry liberty and security), first limb
into the country
ECtHR,
Saadi v. the United
Kingdom, 2008 (persons not yet
authorised by the state to enter)
Return Directive
Detention pending
ECHR, Article 5 (1) (f) (right to
(2008/115/EC), Article 15
deportation or
liberty and security), second limb
CJEU, C-61/11,
El Dridi, 2011 and
extradition
C329/11,
Achughbabian, 2011
(relationship between
pre-removal and
criminal detention)
Return Directive
Prescribed by law
ECHR, Article 5 (1) (right to
(2008/115/EC), Article 20
liberty and security)
ECtHR,
Nowak v. Ukraine, 2011
(procedural guarantees)
Return Directive (2008/115/EC),
Necessity and
ECtHR,
Rusu v. Austria, 2008
Articles 15 and 3 (7)
proportionality
(inadequate reasoning and
arbitrariness of detention)
135
Handbook on European law relating to asylum, borders and immigration
EU
Issues covered
CoE
Arbitrariness
Good faith
ECtHR,
Longa Yonkeu
v. Latvia, 2011 (coast guards
hiding their knowledge of
an asylum application)
Return Directive
Due diligence
ECtHR,
Singh v. the Czech
(2008/115/EC), Article 15 (1)
Republic, 2005 (two and a half
years in detention pending
deportation procedure)
Return Directive
Realistic prospect
ECtHR,
Mikolenko v. Estonia, 2010
(2008/115/EC), Article 15
of removal
(detention in spite of
ECJ, C-357/09,
Kadzoev, 2009
no realistic prospect of removal)
Return Directive
Maximum length
ECtHR,
Auad v.
(2008/115/EC), Article 15 (5) (6)
of detention
Bulgaria, 2011 (assessment
ECJ, C-357/09,
Kadzoev, 2009
of reasonable length of
detention according to particular
circumstances of each case)
Return Directive
Detention of individuals ECtHR,
Mubilanzila Mayeka and
(2008/115/EC),
with specific needs
Kaniki Mitunga v. Belgium, 2006
Articles 3 (9), 16 (3) and 17
(unaccompanied child)
Reception Conditions Directive
ECtHR,
Muskhadzhiyeva and
(2003/9/EC), Article 17
Others v. Belgium, 2007 (children
Trafficking Directive
detained in unsuitable facilities)
(2011/36/EU), Article 11
ECtHR,
Rantsev v. Cyprus and
Russia, 2010 (victim of trafficking)
Procedural safeguards
Return Directive
Right to be given reasons ECHR, Article 5 (2) (right to
(2008/115/EC), Article 15 (2)
liberty and security)
ECtHR,
Saadi v. the United
Kingdom, 2008 (two days
delay considered too long)
EU Charter of Fundamental Rights,
Right to review
ECHR, Article 5 (4) (right to
Article 47 (right to an effective
of detention
liberty and security)
remedy and to a fair trial)
ECtHR,
Abdolkhani and Karimnia v.
Return Directive (2008/115/EC),
Turkey, 2009
Articles 13 (4) and 15 (3)
(no procedure for review)
Return Directive (2008/115/EC),
Detention conditions
ECtHR,
S.D. v. Greece, 2009
Articles 16 and 17
or regimes
(detention conditions)
Compensation for
ECHR, Article 5 (5)
unlawful detention
(right to liberty and security)
136
Detention and restrictions to freedom of movement
Introduction
Detention is an exception to the fundamental right to liberty. Deprivation of liberty
must therefore comply with important safeguards. It must be provided for by law
and must not be arbitrary.246 Detention of asylum seekers and migrants in return
proceedings must be a measure of last resort. It should only be used after other al-
ternatives are exhausted. Despite these principles, a large number of people in Eu-
rope are detained either upon entry or to prevent their absconding during removal
procedures. When deprived of liberty, individuals must be treated in a humane and
dignified manner.
International law restricts the possibility of detaining asylum seekers and refu-
gees. According to Article 31 of the 1951 Geneva Convention penalties must not
be imposed, on account of illegal entry or presence, on “refugees who, coming di-
rectly from a territory where their life or freedom was threatened […], enter or
are present in their territory without authorisation, provided they present them-
selves without delay to the authorities and show good cause for their illegal entry
or presence”.247
The ECHR comprises an exhaustive list of grounds for detention, one of them being
to prevent unauthorised entry or to facilitate the removal of a person. Under EU
law, the overarching principle is that detention of persons in return procedures must
be necessary. The revised directives on reception conditions and asylum procedures
are expected to regulate the detention of asylum seekers. At present, this legal
framework is under review. With the revisions, it is intended that an exhaustive
list of grounds will be introduced under which asylum seekers can exceptionally be
deprived of liberty. In order not to render detention arbitrary, certain additional re-
quirements need to be met, such as giving reasons for any detention and allowing
the detainee to have access to speedy judicial review.
246 For more information on state practices regarding deprivation of liberty, see FRA (2010a).
247 UNHCR (1999),
Revised guidelines on applicable criteria and standards relating to the detention of
asylum-seekers, 26 February 1999; Council of Europe, Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) (2008-2009),
20 Years of Combating Torture:
19th
General Report,1 August 2008-31 July 2009.
137
Handbook on European law relating to asylum, borders and immigration
6.1. Deprivation of liberty or restriction on
the freedom of movement?
Under EU law, the
Reception Conditions Directive (2003/9/EC) defines ‘detention’
as “confinement of an asylum seeker by [an EU] Member State within a particular
place, where the applicant is deprived of his or her freedom of movement” (Arti-
cle 2 (k)). The
Return Directive (2008/115/EC) does not define detention.
Under the ECHR,
Article 5 regulates issues pertaining to deprivation of liberty and
Article 2 of Protocol No. 4 to the ECHR concerns restrictions on freedom of move-
ment. While some obvious examples of detention are given, such as confinement in
a cell, other situations are more difficult to define and may amount to a restriction
on movement as opposed to a deprivation of liberty.
When determining whether an individual’s situation is protected by Article 5 of the
ECHR or Article 2 of Protocol No. 4, the ECtHR has held that there needs to be an as-
sessment of the individual’s situation, taking into account a range of criteria, such
as the type, duration, effects and manner of implementation of the measure in
question.248 The difference between deprivation of liberty and restriction on free-
dom of movement is one of degree or intensity and not of nature or substance.249
The assessment will depend on the specific facts of the case.
A deprivation of liberty may not be established on the significance of any one factor
taken individually but by examining all elements cumulatively. Even a short dura-
tion of a restriction, such as a few hours, will not automatically result in a find-
ing that the situation constituted a restriction on movement as opposed to a dep-
rivation of liberty. This is particularly the case if other factors are present, such as
whether the facility is closed, whether there is an element of coercion250 or whether
the situation has particular effects on the individual, including any physical discom-
fort or mental anguish.251
248 ECtHR
, Austin and Others v. the United Kingdom [GC], Nos. 39692/09, 40713/09 and 41008/09,
15 March 2012, para. 57.
249 ECtHR
, Guzzardi v. Italy, No. 7367/76, 6 November 1980
, para. 93.
250 ECtHR
, Foka v. Turkey,
No. 28940/95, 24 June 2008; ECtHR,
Nolan and K. v. Russia,
No. 2512/04,
12 February 2009.
251 ECtHR
, Guzzardi v. Italy, No. 7367/76, 6 November 1980; ECtHR,
H.L. v. the United Kingdom,
No. 45508/99, 5 October 2004.
138
Detention and restrictions to freedom of movement
Any underlying public interest motive for detention, such as protecting or having
the intention to protect, treat or care for the community against a risk or threat
caused by the individual, has no bearing on the question whether that person has
been deprived of his liberty. Such intentions might be relevant when considering
the justification for detention under Article 5 (1) (a)-(f) of the ECHR.252 In each case,
however, Article 5 (1) must be interpreted in a manner that accounts for the spe-
cific context in which the measures are taken. There should also be regard for the
responsibility and duty of the police to maintain order and protect the public, which
they are required to do under both national and ECHR law.253
Example: In
Guzzardi v. Italy,254 the applicant was restricted from moving
around a specified area, placed under curfew and special supervision, required
to report to the authorities twice a day, and had restricted and supervised
contact with the outside world. The Court held that there had been an
unjustified deprivation of liberty under Article 5 of the ECHR.255
Example: In
Raimondo v. Italy,256 the applicant was placed under police
supervision, which was held to be a restriction on movement, not a deprivation
of liberty. He could not leave his home without informing the police, although
he did not need their permission to actually leave.
Example: In
Amuur v. France and
Riad and Idiab v. Belgium, both concerning
asylum seekers,257 and in
Nolan and K. v. Russia,258 involving a third-country
national, a detention in the transit zone of an airport was held to be unlawful
under Article 5 (1) of the ECHR. The Court had not accepted the authorities’
argument that there had not been a deprivation of liberty because the person
concerned could avoid detention at the airport by taking a flight out of the
country.
252 ECtHR
, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 2009, paras. 163-164.
253 ECtHR
, Austin and Others v. the United Kingdom [GC], Nos. 39692/09, 40713/09 and 41008/09,
15 March 2012, para. 60.
254 ECtHR
, Guzzardi v. Italy, No. 7367/76, 6 November 1980.
255
Ibid.
256 ECtHR
, Raimondo v. Italy,
No. 12954/87, 22 February 1994.
257 ECtHR
, Amuur v. France, No. 19776/92, 25 June 1996, paras. 38-49; ECtHR
, Riad and Idiab v. Belgium,
Nos. 29787/03 and 29810/03, 24 January 2008.
258 ECtHR,
Nolan and K. v. Russia,
No. 2512/04, 12 February 2009, paras. 93-96.
139
Handbook on European law relating to asylum, borders and immigration
Example: In
Rantsev v. Cyprus and Russia,259 the applicant’s daughter was
a Russian national residing in Cyprus and working as an artist in a cabaret on
a work permit issued by request of the cabaret owners. After several months,
the daughter decided to leave her employment and return to Russia. One of
the cabaret owners reported to the immigration office that the daughter had
abandoned her place of work and residence. The daughter was subsequently
found and brought to the police station, where she was detained for about
an hour. The police decided that the daughter was not to be detained and
that it was for the cabaret owner, the person responsible for her, to come and
collect her. Consequently, the cabaret owner took the applicant’s daughter to
the apartment of another cabaret employee, which she could not leave of her
own free will. The next morning she was found dead on the street below the
apartment. While the total duration of the daughter’s detention was about two
hours, the Court held that it amounted to a deprivation of liberty within the
meaning of Article 5 of the ECHR. The Cypriot authorities were responsible for
the detention in the police station and also in the apartment because, without
the active cooperation of the Cypriot police with the cabaret owners in the
present case, the deprivation of liberty would not have occurred.
6.2. Alternatives to detention
Under EU law, detention must be a last resort and all alternatives must first be
exhausted, unless there is evidence to suggest that such alternatives would not be
effective in the individual case (Article 15 (1) of th
e Return Directive (2008/115/EC):
“[u]nless other sufficient but less coercive measures can be applied”). Detention
should therefore only take place after full consideration of all possible alternatives,
or when monitoring mechanisms have not achieved the lawful and legitimate pur-
pose. The need to give priority to alternatives is also envisaged in the revisions of
the
Reception Conditions Directive for asylum seekers.
Viable alternatives to detention include: reporting obligations, such as reporting
to the police or immigration authorities at regular intervals; the obligation to sur-
render a passport or travel document; residence requirements, such as living and
sleeping at a particular address; release on bail with or without sureties; guarantor
requirements; release to care worker support or under a care plan with community
care or mental health teams; or electronic monitoring, such as tagging.
259 ECtHR
, Rantsev v. Cyprus and Russia, No. 25965/04, 7 January 2010, paras. 314-325.
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Under the ECHR,
the ECtHR looks at whether a less intrusive measure could have
been imposed prior to detention.
Example: In
Mikolenko v. Estonia,260 the Court found that the authorities had
other measures at their disposal than keeping the applicant in protracted
detention at the deportation centre when there was no immediate prospect of
his being expelled.
Alternatives to detention often involve restrictions on freedom of movement. Under
the ECHR, the right to freedom of movement is guaranteed by Article 2 of Protocol
No. 4 provided the state has ratified this Protocol (see Annex 2). A restriction on
this freedom must be necessary and proportionate and comply with the aims in the
second paragraph of Article 2 of Protocol No. 4. This provision only applies to those
“lawfully within the territory” and therefore does not assist those in an irregular
situation.
Example: In
Omwenyeke v. Germany,261 the applicant had been confined to
living in a particular area as part of his temporary residence condition pending
the outcome of his asylum claim. The ECtHR held that, since the applicant had
breached his conditions of temporary residence, he had not been “lawfully”
within the territory of Germany and could therefore not rely on the right to
freedom of movement under Article 2 of Protocol No. 4.
6.3. Exhaustive list of exceptions to
the right to liberty
Under EU law, deprivation of liberty is regulated in th
e Reception Conditions Direc-
tive for asylum seekers and in the
Return Directive for persons in return procedures
(Article 15 of the
Return Directive). It should be noted that as at April 2013, EU law
did not contain an exhaustive list of grounds for the detention of asylum seekers;
this will, nevertheless, be introduced as part of planned revisions of EU law.
260 ECtHR
, Mikolenko v. Estonia, No. 10664/05, 8 October 2009.
261 ECtHR
, Omwenyeke v. Germany (dec.), No. 44294/04, 20 November 2007.
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Handbook on European law relating to asylum, borders and immigration
According to Article 18 of the
Asylum Procedures Directive (2005/85/EC), it is not
acceptable to detain a person solely for the reason that she or he has lodged an
asylum application.262
Article 15 (1) of th
e Return Directive only allows for the detention of third-country
nationals who are the “subject of return procedures”. Deprivation of liberty is per-
mitted for the following two reasons, in particular when there is a risk of abscond-
ing or of other serious interferences with the return or removal process:
· in order to prepare return;
· in order to carry out the removal process.
Under the ECHR, Article 5 (1) protects the right to liberty and security. Its subpara-
graphs (a)-(f) provide an exhaustive list of permissible exceptions: “No one shall be
deprived of his liberty”, except in any of the following cases and in accordance with
a procedure prescribed by law:
· after conviction by a competent court;
· for failure to comply with a court order or a specific obligation prescribed by law;
· pending trial;
· in specific situations concerning minors;
· on public health grounds or due to vagrancy;
· to prevent an unauthorised entry or to facilitate removal of an alien.
It is for the state to justify detention by relying on one of these six grounds.263 If the
detention cannot be based on any of these grounds, it is automatically unlawful.264
262 For more information, see European Commission, Directorate-General of Home Affairs (2012),
‘Reception conditions’, available at
: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/
asylum/reception-conditions/index_en.htm.
263 The United Kingdom, Supreme Court
, WL (Congo) 1 & 2 v. Secretary of State for the Home Department;
KM (Jamaica) v. Secretary of State for the Home Department [2011] UKSC 12, 23 March 2011.
264 ECtHR
, Al-Jedda v. the United Kingdom [GC], No. 27021/08, 7 July 2011, para. 99.
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Detention and restrictions to freedom of movement
The grounds are restrictively interpreted.265 There is no catch-all provision, such as
detention to prevent an unspecified crime or disorder in general. Failure to identify
clearly the precise purpose of detention and the ground may mean that the deten-
tion is unlawful.
Article 5 (1) (f) of the ECHR provides for detention of asylum seekers and irregular
migrants in two situations:
· to prevent an unauthorised entry into the country;
· of a person against whom action is being taken with a view to his or her depor-
tation or extradition.
As with the other exceptions to the right to liberty, detention under Article 5 (1) (f)
must be based on one of these specific grounds that are restrictively interpreted.
Example:
Yoh-Ekale Mwanje v. Belgium266 concerned the detention of
a Cameroonian national with advanced HIV. The authorities knew the
applicant’s identity and fixed address, and she had always kept her
appointments with them and had initiated several steps to regularise her
status in Belgium. Notwithstanding the fact that her health deteriorated during
detention, the authorities did not consider a less intrusive option, such as
issuing her a temporary residence permit to safeguard the public interest. They
kept her instead in detention for almost four months. The ECtHR saw no link
between the applicant’s detention and the government’s aim to deport her,
and therefore found that Article 5 (1) (f) of the ECHR had been violated.
Example: In
A. and Others v. the United Kingdom,267 the Court held that a policy
of keeping an applicant’s possible deportation “under active review” was not
sufficiently certain or determinative to amount to “action [...] being taken with
a view to deportation” under Article 5 (1) (f). The detention was clearly not
aimed at preventing an unauthorised entry and was therefore unlawful.
265 ECtHR
, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 2009.
266 ECtHR,
Yoh-Ekale Mwanje v. Belgium,
No. 10486/10, 20 December 2011.
267 ECtHR
, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 2009, para. 167.
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Handbook on European law relating to asylum, borders and immigration
6.3.1. Detention to prevent an unauthorised entry
into the country
Under EU law, th
e Schengen Borders Code (Regulation No. 562/2006) requires that
third-country nationals who do not fulfil the entry conditions are refused entry into
the EU. Border guards have a duty to prevent irregular entry. The national law of
many EU Member States provides for short-term deprivation of liberty at the bor-
der, which often takes place in the transit area of an airport. In the context of the
Reception Conditions Directive’s revisions, several grounds for the detention of asy-
lum seekers are being proposed, including when a decision is taken on an asylum
seeker’s right to enter.
Under the ECHR,
detention has to adhere to a number of conditions in order to be
lawful under Article 5 of the ECHR.
Example: In
Saadi v. the United Kingdom,268 the ECtHR held that until a Member
State has ‘authorised’ entry into the country, any entry is ‘unauthorised’.
The detention of a person who wished to effect an entry but did not yet have
authorisation to do so could be, without any distortion of language, aimed
at preventing his effecting an unauthorised entry within the meaning of
Article 5 (1) (f) of the ECHR. The Court did not accept that since, as soon as an
asylum seeker surrenders to the immigration authorities, he or she is seeking to
effect an “authorised” entry. The result therefore being that his or her detention
could not be justified under Article 5 (1) (f). An interpretation of this provision
as only permitting detention of a person who was shown to be trying to evade
entry restrictions would place too narrow a construction on the provision’s terms
and on the Member State’s power to exercise its undeniable right to control the
liberty of aliens in an immigration context. Such an interpretation would also be
inconsistent with Conclusion No. 44 of the Executive Committee of the United
Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines
and the relevant Committee of Ministers Recommendation. All of these envisage
the detention of asylum seekers in certain circumstances, for example, while
identity checks are taking place or while determining the elements that form the
basis of an asylum claim. The Court held that the applicant’s seven-day detention
under an accelerated asylum procedure, which had been taken due to a mass
influx situation, had not been in violation of Article 5 (1) (f).
268 ECtHR
, Saadi v. the United Kingdom [GC], No. 13229/03,
29 January 2008, para. 65.
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Detention and restrictions to freedom of movement
6.3.2. Detention pending deportation or extradition
Under EU law, the revised
Reception Conditions Directive will allow for the deten-
tion of asylum seekers in specific situations, where this is deemed necessary fol-
lowing an individual examination of the case. Most of the grounds provided for in
the draft of the revised directive are aimed at mitigating a risk of absconding.
Article 15 (1) of the
Return Directive permits detention in order to prepare return or
to carry out the removal process, unless this can be achieved by other sufficient but
less coercive measures (see Section 6.2). Detention is permitted, particularly in cas-
es where there is a risk of absconding or other serious interferences with the return
or removal process and if there is a realistic prospect of removal within a reason-
able time. There are maximum time limits set by Article 15 (5) (6) of the directive.
Several cases have been referred to the CJEU concerning the imprisonment of third-
country nationals in return procedures for the crime of irregular entry or stay. 269
Example: In
El Dridi,270 the CJEU was asked to verify whether it was compatible
with Articles 15 and 16 of the
Return Directive to impose a criminal detention
sanction during the return procedure and on the sole ground that a third-
country national did not comply with an administrative order to leave the
territory within a given period. The Court had to consider whether criminal
detention could have been regarded as a measure necessary to implement
the return decision within the meaning of Article 8 (1) of the directive or, on
the contrary, a measure compromising the implementation of that decision.
Given the circumstances of the case, the Court held that the criminal detention
sanction was not compatible with the scope of the directive – namely the
establishment of an effective return policy in line with fundamental rights –
and did not contribute to the removal of the third-country national from the
EU Member State concerned. When the obligation to return is not complied
with within the period for voluntary departure, EU Member States have to
pursue the enforcement of the return decision in a gradual and proportionate
manner, using the least coercive measures possible and with due respect for
fundamental rights.
269 CJEU, C-430/11,
Sagor, 6 December 2012 (concerning the imposition of a fine); CJEU, C-297/12,
Strafverfahren v. Gjoko Filev and Adnan Osmani, reference for a preliminary ruling from the Local Court
(
Amtsgericht) of Laufen (Germany) lodged on 18 June 2012 (concerning detention based on violating
a pre-existing entry ban).
270 CJEU, C-61/11
, El Dridi, 28 April 2011, paras. 29-62.
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Handbook on European law relating to asylum, borders and immigration
Example: In
Achughbabian,271 the Court examined whether the principles
established in
El Dridi also applied to a third-country national’s imprisonment
sentence for an offence of entry or illegal stay in the territory of an EU Member
State. The Court clarified that the
Return Directive does not preclude a Member
State from classifying an illegal stay as an offence and laying down penal
sanctions to deter and prevent such an infringement of the national residence
rules, nor from imposing detention while determining whether his or her stay
is legal. When detention is imposed before or during the return procedure, said
situation is covered by the directive and, thus, has to pursue the removal. The
CJEU found that th
e Return Directive was not respected because the criminal
detention would not pursue the removal. It would hinder the application of the
common standards and procedures and delay the return, thereby undermining
the effectiveness of the directive. At the same time, the CJEU did not exclude
the possibility for Member States to impose criminal detention after the return
procedure is completed, that is to say when the coercive measures provided for
by Article 8 have been applied but the removal has failed.
Under the ECHR,
under the second limb of Article 5 (1) (f), Council of Europe mem-
ber states are entitled to keep an individual in detention for the purpose of his or
her deportation or extradition, where such an order has been issued and there is
a realistic prospect of removal. Detention is arbitrary when no meaningful “action
with a view to deportation” is under way or actively pursued in accordance with the
requirement of due diligence.
Example: In
Mikolenko v. Estonia,272 the applicant was a Russian national living
in Estonia. The Estonian authorities refused to extend his residence permit and
detained him from 2003 to 2007. The ECtHR accepted that the applicant was
clearly unwilling to cooperate with the authorities during the removal process,
but found his detention unlawful because there was no realistic prospect of
expulsion and the authorities failed to conduct proceedings with due diligence.
Example: In
M. and Others v. Bulgaria,273 the applicant’s deportation to
Afghanistan had been ordered in December 2005, but the first time authorities
had attempted to secure an identity document for him to facilitate deportation
271 CJEU, C-329/11
, Achughbabian v. Prefet du Val-de-Marne, 6 December 2011, paras. 29-31.
272 ECtHR
, Mikolenko v. Estonia, No. 10664/05, 8 October 2009.
273 ECtHR
, M. and Others v. Bulgaria, No. 41416/08, 26 July 2011, paras. 75 and 76.
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Detention and restrictions to freedom of movement
was in February 2007. This request was repeated 19 months later. During this
period, the applicant had remained in detention. The Bulgarian authorities had
also tried to send him to another country but did not have evidence of such an
effort. The detention was unlawful and, for lack of diligence, it was a breach of
Article 5 of the ECHR.
Example: In
Popov v. France,274 the applicants were nationals of Kazakhstan
who had arrived in France in 2000. Their applications for refugee status and
for a residence permit were rejected. In August 2007, they were arrested and
transferred to an airport for their expulsion. Their flight was cancelled and the
expulsion did not take place. They were then transferred to a detention centre
with their two children, aged five months and three years, where they stayed
for 15 days. A second flight was cancelled and a judge set them free. Following
a new application, they were granted refugee status. The Court found that,
although the children had been placed with their parents in a wing reserved
for families, their particular situation had not been taken into account and the
authorities had not sought to establish whether any alternative solution, other
than administrative detention, could have been envisaged. The French system
had therefore not properly protected the childrens’ right to liberty under
Article 5 of the ECHR.
6.4. Prescribed by law
Detention must be lawful according to domestic law, EU law and ECHR law.
Under EU law,
EU Member States are obliged to bring into force laws, regulations
and administrative provisions necessary to comply with th
e Return Directive (Arti-
cle 20). Similarly, the draft revision of the
Reception Conditions Directive requires
that the grounds for detention be laid down in national law.
Under the ECHR,
Article 5 (1) provides that “no one shall be deprived of his liberty”
unless “in accordance with a procedure prescribed by law”. This means that national
law must lay down substantive and procedural rules prescribing when and in what
circumstances an individual may be detained.
274 ECtHR,
Popov v. France, Nos. 39472/07 and 39474/07, 19 January 2012.
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Handbook on European law relating to asylum, borders and immigration
Article 5 does not merely “refer back to domestic law” but also relates to the “qual-
ity of the law”, requiring it to be compatible with the rule of law, a concept inher-
ent in all articles of the ECHR. For the law to be of a certain ‘quality’, it must be
sufficiently accessible, and precise and foreseeable in its application to avoid a risk
of arbitrariness. Any deprivation of liberty has to be in line with the purpose of Arti-
cle 5 of the ECHR so as to protect the individual from arbitrariness.275
Example: In
S.P. v. Belgium,276 the applicant was placed in a detention centre
pending his imminent expulsion to Sri Lanka. The ECtHR then issued an
interim measure staying his expulsion and the applicant was released from
detention 11 days later. The ECtHR stated that the application of an interim
measure temporarily suspending the procedure for the applicant’s deportation
did not render his detention unlawful, as the Belgian authorities had still
envisaged deporting him and that, notwithstanding the suspension, action was
still “being taken” with a view to his deportation.
6.5. Necessity and proportionality
Under EU law, Article 15 (5) of the
Return Directive provides that “detention shall
be maintained for as long a period as the conditions laid down in paragraph 1 are
fulfilled and it is necessary to ensure successful removal”. There must be clear and
cogent evidence, not just bare assertion, of the necessity in each individual case.
Article 15 (1) of the directive refers to detention for the purpose of removal where
there is a risk of absconding – but such risk must be based on “objective criteria”
(Article 3 (7)). Decisions taken under the directive should be adopted on a ‘case-by-
case’ basis and based on objective criteria. It is not enough to detain an individual
on the mere basis of illegal stay (Recital 6 of the
Return Directive).
EU law requires weighing whether the deprivation of liberty is proportionate to the
objective to be achieved, or whether removal could be successfully implemented by
imposing less restrictive measures, such as alternatives to detention (Article 15 (1)
of the
Return Directive).277
275 ECtHR
, Amuur v. France, No. 19776/92, 25 June 1996, para. 50; ECtHR
, Dougoz v. Greece,
No. 40907/98, 6 March 2001, para. 55.
276 ECtHR,
S.P. v. Belgium (dec.), No. 12572/08, 14 June 2011.
277 CJEU, C-61/11,
El Dridi, 28 April 2011, paras. 29-62.
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Detention and restrictions to freedom of movement
The draft revision of the
Reception Conditions Directive foresees that the detention
of asylum seekers may prove necessary on the basis of an individual assessment
and when other less coercive alternative measures cannot be effectively applied.
In addition to questions of legality and procedural safeguards, detention must also
substantively comply with the fundamental rights contained in the ECHR and under
the EU Charter of Fundamental Rights.278
Under the ECHR, Article 5 stipulates the right to liberty and security. Under Arti-
cle 5 (1) (f), there is no requirement for a necessity test in order to detain a person
who tries to enter the country unauthorised or against whom action is being taken
with a view to deportation or extradition. This is in contrast with other forms of de-
tention covered by Article 5 (1), such as preventing an individual from committing
an offence or fleeing.279
Article 9 of the ICCPR requires that any deprivation of liberty imposed in an immi-
gration context must be lawful, necessary and proportionate. In a case concerning
the detention of a Cambodian asylum seeker in Australia, the UN Human Rights
Committee has explicitly found that detention must be necessary and proportionate
to comply with Article 9 of the ICCPR.280
6.6. Arbitrariness
Under the ECHR,
compliance with national law is insufficient. Article 5 of the ECHR
requires that any deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness. It is a fundamental principle that no ar-
bitrary detention can be compatible with Article 5 (1). The notion of “arbitrariness”
extends beyond lack of conformity with national law; a deprivation of liberty may be
lawful in terms of domestic law but still arbitrary and thus contrary to the ECHR.281
To avoid being considered arbitrary, detention under Article 5 (1) (f) must be carried
out in good faith: it must be closely connected to the detention ground identified
and relied on by the government; the place and conditions of detention should be
278 CJEU, C-329/11
, Achughbabian v. Prefet du Val-de-Marne, 6 December 2011, para. 49.
279 ECtHR
, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para. 72.
280 UN Human Rights Committee,
A v. Australia, Communication No. 560/1993, views of 30 April 1997.
281 ECtHR, [GC],No. 13229/03, 29 January 2008, para. 67; ECtHR, [GC], No. 3455/05, 19 February 2009,
para. 164.
149
Handbook on European law relating to asylum, borders and immigration
appropriate; and the length of the detention should not exceed a duration that is
reasonably required for the purpose pursued. Proceedings have to be carried out
with due diligence and there must be a realistic prospect of removal. What is con-
sidered arbitrary depends on the facts of the case.
Example: In
Rusu v. Austria,282 the applicant was arrested when trying to leave
Austria because she had entered the country illegally without a valid passport
and visa, and because she lacked the necessary subsistence means for a stay
in Austria. For those reasons, the authorities assumed that she would abscond
and evade the proceedings if released. The ECtHR reiterated that detention of
an individual was a serious measure and that in a context where detention
was necessary to achieve a stated aim the detention would be arbitrary unless
it was justified as a last resort after other less severe measures had been
considered and found to be insufficient for safeguarding the individual or public
interest. The authorities’ reasoning for detaining the applicant was inadequate
and her detention contained an element of arbitrariness. Her detention
therefore violated Article 5 of the ECHR.
6.6.1. Good faith
Under the ECHR,
detention might be considered arbitrary if the detaining authori-
ties do not act in good faith.283
Example: In
Longa Yonkeu v. Latvia,284 the Court rejected the government’s
argument that the State Border Guard Service only learned of the suspension of
the applicant’s deportation two days after he had been deported. For four days,
the authorities had been aware that the applicant had applied for asylum on
humanitarian grounds, as they had received a copy of his application. Further,
under domestic law, he enjoyed asylum seeker status from the date of his
application and as such could not be deported. Consequently, the State Border
Guard Service did not act in good faith by deporting the applicant before his
application for asylum on humanitarian grounds was examined by the competent
domestic authority. Therefore, his detention for that purpose was arbitrary.
282 ECtHR
, Rusu v. Austria, No. 34082/02, 2 October 2008, para. 58.
283 ECtHR
, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 2009;
ECtHR,
Saadi v. the
United Kingdom [GC], No. 13229/03, 29 January 2008.
284 ECtHR
, Longa Yonkeu v. Latvia, No. 57229/09, 15 November 2011, para. 143.
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Detention and restrictions to freedom of movement
6.6.2. Due diligence
EU and ECHR law both contain the principle that the Member State must exercise
due diligence when detaining individuals subject to removal.
Under EU law, Article 15 (1) of the
Return Directive provides that detention should
be maintained only as long as removal arrangements are in progress and executed
with due diligence. Similarly, a due diligence provision is being introduced in the
Reception Conditions Directive for asylum seekers.
Under the ECHR,
detention under the second limb of Article 5 (1) (f) of the ECHR is
only justified for as long as deportation or extradition proceedings are in progress. If
such proceedings are not conducted with due diligence, the detention will cease to be
permissible under the ECHR.285 Member States must therefore make an active effort to
organise a removal, whether to the country of origin or to a third country. In practice,
Member States must take concrete steps and provide evidence – not simply rely on
their own statements – of efforts made to secure admission, for example where the
authorities of a receiving state are particularly slow to identify their own nationals.
Example: In
Singh v. the Czech Republic,286 the Court noted that the applicants
were detained for two and a half years pending deportation. The proceedings
were characterised by periods of inactivity, and the Court considered that
the Czech authorities ought to have shown greater diligence, especially once
the Indian Embassy had expressed its unwillingness to issue passports to the
applicants. In addition, the Court noted that the applicants had been convicted
of a minor offence, and that the length of their detention pending deportation
had exceeded that of the prison sentence related to the offence. Consequently,
the Court considered that the Czech authorities had not shown due diligence in
handling the applicants’ case and that the length of their detention had been
unreasonable.
6.6.3. Realistic prospect of removal
Under both EU and ECHR law, detention is only justified where there is a realistic
prospect of removal within a reasonable time.
285 ECtHR
, Chahal v. the United Kingdom [GC], No. 22414/93, 15 November 1996, para. 113; ECtHR
, A. and
Others v. the United Kingdom [GC], No. 3455/05, 19 February 2009, para. 164.
286 ECtHR,
Singh v. the Czech Republic, No. 60538/00, 25 January 2005.
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Handbook on European law relating to asylum, borders and immigration
Under EU law,
where a reasonable prospect of removal no longer exists, detention
ceases to be justified and the person must be immediately released (Article 15 (4)
of the
Return Directive). Where there are barriers to removal, such as the princi-
ple of
non-refoulement (Article 5 of th
e Return Directive), reasonable prospects of
removal do not normally exist. If an individual has made an asylum claim, or sub-
mitted a new asylum application (Article 32 of the
Asylum Procedures Directive),
detention pending removal would only be allowed if the asylum procedure can be
swiftly completed.
Example: In
Kadzoev, the ECJ287 held that when the national court reviewed the
detention, there needed to be a real prospect that removal could successfully
be carried out in order for there to be a reasonable prospect of removal. That
reasonable prospect did not exist where it was unlikely that the person would
be admitted to a third country.
In a domestic context, the United Kingdom Border Agency has developed a practi-
cal yardstick. It states that in deportation cases: “[…] removal could be said to be
imminent where a travel document exists, removal directions are set, there are
no outstanding legal barriers and removal is likely to take place in the next four
weeks. [However] where the [individual] is frustrating removal by not co-operating
with the documentation process, and where that is a significant barrier to removal,
these are factors weighing strongly against release.”288
Under the ECHR, realistic prospects for expulsion are required.
Example:
Mikolenko v. Estonia289 concerned an alien detained for a lengthy
period of time of almost four years for refusing to comply with an expulsion
order. The Court found that Article 5 (1) (f) had been violated because the
grounds for detention had not remained valid for the whole detention period
owing to the lack of a realistic prospect of his expulsion and due to the
domestic authorities’ failure to conduct the proceedings with due diligence.
287 ECJ, C-357/09 [2009] ECR I-11189
, Kadzoev, 30 November 2009, paras. 65 and 66.
288 The United Kingdom Border Agency (2012),
Enforcement Instructions and Guidance: Chapter 55
Detention and Temporary Release, available at www.bia.homeoffice.gov.uk/sitecontent/documents/
policyandlaw/enforcement/detentionandremovals.
289 ECtHR
, Mikolenko v. Estonia, No. 10664/05, 8 October 2009, para. 67.
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Detention and restrictions to freedom of movement
6.6.4. Maximum length of detention
Under EU law, the
Return Directive stipulates that detention must be for the short-
est period possible (Article 15 (1)). The directive, however, also provides for a time
limit of up to six months for detention, which is extendable by 12 months in ex-
ceptional circumstances, namely in cases of non-cooperation or where there are
barriers to obtaining travel documentation (Articles 15 (5) and 15 (6)). Exceptional
extensions require the authorities to have first taken all reasonable efforts to re-
move the individual. Further detention is not possible once the six month and, in
exceptional cases, the additional 12 month periods have expired.
Example: In
Kadzoev,
the ECJ held that it was clear that, upon reaching the
maximum duration of detention provided for in Article 15 (6) of the
Return
Directive, there was no longer a question of whether there was a ‘reasonable
prospect of removal’ within the meaning of Article 15 (4). In such a case, the
person concerned must be immediately released.290
Under the ECHR, the permissible duration of detention for the purposes of Arti-
cle 5 (1) (f) of the ECHR depend on an examination of national law together with an
assessment of the particular facts of the case. Time limits are an essential compo-
nent of precise and foreseeable law governing the deprivation of liberty.
Example: In
Mathloom v. Greece,291 an Iraqi national was kept in detention
for over two years and three months pending deportation, although an order
had been made for his conditional release. The Greek legislation governing
detention of persons whose expulsion had been ordered by the courts did
not lay down a maximum period and therefore did not satisfy the ‘legality’
requirement under Article 5 of the ECHR as there was no foreseeability in the
legislation.
Example: In
Louled Massoud v. Malta,292 an Algerian national was placed in
a detention centre for a little more than 18 months with a view to deportation.
During that time, the applicant refused to cooperate and the Algerian
authorities had not been prepared to issue him travel documents. In finding
290 ECJ, C-357/09 [2009] ECR I-11189
, Kadzoev, 30 November 2009, para. 60.
291 ECtHR,
Mathloom v. Greece,
No. 48883/07, 24 April 2012.
292 ECtHR
, Louled Massoud v. Malta, No. 24340/08, 27 July 2010.
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Handbook on European law relating to asylum, borders and immigration
a violation of Article 5 (1), the ECtHR expressed grave doubts as to whether the
grounds for the applicant’s detention, the intended deportation, remained valid
for the whole period of his detention. This included doubts about the more
than 18 month period following the rejection of his asylum claim, the probable
lack of a realistic prospect of his expulsion and the possible failure of the
domestic authorities to conduct the proceedings with due diligence. Moreover,
the Court established that the applicant did not have any effective remedy for
contesting the lawfulness and length of his detention.
Example: In
Auad v. Bulgaria,293 the ECtHR held that the length of detention
should not exceed the length reasonably required for the purpose pursued.
The Court noted that a similar point had been made by the ECJ in relation to
Article 15 of th
e Return Directive in the
Kadzoev case. The Court stressed that,
unlike Article 15 of the
Return Directive, Article 5 (1) (f) of the ECHR did not
contain maximum time limits. Whether the length of deportation proceedings
could affect the lawfulness of detention under this provision thus depended
solely on the particular circumstances of each case.
6.7. Detention of individuals with
specific needs
Under EU law, Article 17 of the
Reception Conditions Directive and Article 3 (9) of
th
e Return Directive list persons considered to be vulnerable (see Chapter 9). The
Return Directive does not bar the detention of vulnerable persons, but when they
are detained, Article 16 (3) requires that detailed attention be paid to their specific
needs. The
Trafficking Directive (2011/36/EU) contains a duty to provide assistance
and support to victims of trafficking, such as providing appropriate and safe accom-
modation (Article 11), although the directive does not fully ban their detention.
Under the ECHR, the ECtHR has reviewed immigration cases involving the detention
of children and persons with mental health problems. The Court found their deten-
tion in facilities not equipped to handle their needs to be arbitrary and in violation
of Article 5 of the ECHR as well as, in some cases, also raising issues under Article 3
293 ECtHR
, Auad v. Bulgaria, No. 46390/10, 11 October 2011, para. 128.
154
Detention and restrictions to freedom of movement
of the ECHR.294 The Court also considered that asylum seekers are particularly vulner-
able, in the context of detention and as regards conditions in which they were held.295
Example: In
Mubilinanzila Mayeka and Kaniki Mitunga v. Belgium,296 the Court
held that detention of an unaccompanied asylum-seeking child in an adult
detention centre breached Article 3 of the ECHR.
Example: In
Muskhadzhieyeva v. Belgium,297 the Court held that the detention of
four Chechen children pending a Dublin transfer in a facility not equipped to deal
with the specific needs of children had been in breach of Article 3 of the ECHR.
Example: In
Rantsev v. Cyprus and Russia,298 the Court found that the Cypriot
authorities had not provided an explanation as to the reasons and legal basis for
not allowing the applicant’s late daughter, a victim of trafficking, to leave the
police station of her own accord, but to release her into the custody of a private
individual. In these circumstances, the Court found that her deprivation of liberty
had been both arbitrary and unlawful under Article 5 of the ECHR.
6.8. Procedural safeguards
Under both EU law and the ECHR, there are procedural safeguards with respect to
the detention of asylum seekers and migrants. The protection against arbitrary de-
tention under the ECHR arguably makes the protection stronger than under EU law,
especially for asylum seekers.
Under EU law, the
Return Directive deals with specific guarantees when illegal-
ly-staying migrants face return. The
Asylum Procedures Directive, which as at the
end of 2012 was still under review, simply states that asylum seekers cannot be
294 ECtHR
, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 October 2006;
ECtHR,
Muskhadzhiyeva and Others v. Belgium,
No. 41442/07, 19 January 2010; ECtHR,
Kanagaratnam and Others v. Belgium, No. 15297/09, 13 December 2011; ECtHR,
Popov v. France,
Nos. 39472/07 and 39474/07, 19 January 2012; ECtHR
, M.S. v. the United Kingdom, No. 24527/08,
3 May 2012; ECtHR,
Price v. the United Kingdom No. 33394/96, 10 July 2001.
295 ECtHR,
S.D. v. Greece,
No. 53541/07, 11 June 2009; ECtHR
, M.S.S. v. Belgium and Greece [GC],
No. 30696/09, 21 January 2011.
296 ECtHR
, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 October 2006.
297 ECtHR,
Muskhadzhiyeva and Others v. Belgium,
No. 41442/07, 19 January 2010.
298 ECtHR
, Rantsev v. Cyprus and Russia, No. 25965/04, 7 January 2010.
155
Handbook on European law relating to asylum, borders and immigration
detained solely based on having made an application for asylum and that, if de-
tained, asylum applicants must have access to speedy judicial review. It is planned
that these safeguards for asylum seekers will be strengthened in the revised
Recep-
tion Conditions Directive.
Under the ECHR, Article 5 of the ECHR contains its own built-in set of procedural
safeguards. The following two articles also apply to deprivation of liberty under
Article 5 (1) (f):
· Article 5 (2): the right to be informed promptly, in a language understood by the
person concerned, of the reasons for his or her arrest and of any charge against
him or her.
· Article 5 (4): the right to take proceedings by which the lawfulness of detention
shall be decided speedily by a court and release ordered if the detention is not
lawful.
6.8.1. Right to be given reasons
Under EU law, Article 15 (2) of the
Return Directive requires authorities to order
detention in writing and give reasons in fact and in law.
Under the ECHR, every detainee must be informed of the reasons for their deten-
tion ‘promptly’ and ‘in a language which he or she understands’ (Article 5 (2) of
the ECHR). This means that a detainee must be told the legal and factual grounds
for his arrest or detention in simple, non-technical language that the detainee can
understand so as to be able, if he sees fit, to challenge its lawfulness in court in ac-
cordance with Article 5 (4).
Example: In
Nowak v. Ukraine,299
a Polish national asked for the reasons for
his arrest and was told that he was an “international thief”. The ECtHR held
that this statement could hardly correspond to the deportation order which
had been drafted in Ukrainian and referred to a provision of national law. The
applicant did not have sufficient knowledge of the language to understand the
document, which he received on the fourth day of his detention. Before that
date, there was no indication that he had been notified that he was detained
299 ECtHR
, Nowak v. Ukraine, No. 60846/10
, 31 March 2011, para. 64.
156
Detention and restrictions to freedom of movement
with a view to deportation. Furthermore, the applicant had no effective
means of raising his complaint while in detention or of claiming compensation
afterwards. Consequently, there had been a breach of Article 5 (2) of the ECHR.
Example: In
Saadi v. the United Kingdom,300 a 76 hour delay in providing
reasons for detention was considered too long and in breach of Article 5 (2) of
the ECHR.
Example: In
Dbouba v. Turkey,301 the applicant was an asylum seeker. Two
police officers took his statement about his application to the UNHCR. He was
told that he had been released pending trial on the charge of being a member
of al-Qaeda, and that a deportation procedure had been initiated against him.
The applicant was not given any documents with information on the grounds
for his detention in the police headquarters. The ECtHR held that the reasons for
the applicant’s detention were ‘never communicated’ to him by the national
authorities, which was a breach of Article 5 (2) of the ECHR.
6.8.2. Right to review of detention
Under EU law and the ECHR, the right to judicial review is key for assuring against
arbitrary detention.
Under EU law, Article 47 of the EU Charter of Fundamental Rights demands that any
individual in a situation governed by EU law, such as those detained pursuant to the
Return Directive, has the right to an effective remedy and to a fair and public hear-
ing within a reasonable time. Article 47 of the Charter and Article 13 (4) of the
Re-
turn Directive also require that all individuals have the possibility of being advised,
represented and defended in legal mattters, and that legal aid be made available to
ensure access to justice (see Chapter 4 for more details). In addition, Article 15 (3)
of the
Return Directive establishes that detention has to be reviewed at reasonable
intervals of time either by application from the third-country national or
ex officio.
Furthermore, in case of prolonged detention periods, the article also requires that
the reviews be subject to the supervision of a judicial authority. Provisions for the
detention of asylum seekers are still under negotiation.
300 ECtHR
, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008.
301 ECtHR
, Dbouba v. Turkey, No. 15916/09, 13 July 2010, paras. 52-54.
157
Handbook on European law relating to asylum, borders and immigration
Under the ECHR, Article 5 (4) specifically requires that “everyone” deprived of his
or her liberty be entitled to take proceedings to have the legality of their detention
“decided speedily by a court and their release ordered if the detention is not law-
ful”. This obligation is mirrored in Article 9 (4) of the ICCPR.
The need for “speedy” review and “accessibility” of the remedy are two key safe-
guards. The purpose of Article 5 (4) is to guarantee a detainee’s right to “judicial
supervision” of the measure to which they are subjected. As such, Article 5 (4) does
not simply require access to a judge to decide speedily the legality of detention,
but also requires a court’s periodic review of the need for continued detention. The
remedy must be available during the detention to allow the detainee to obtain
speedy judicial review, and the review must be capable of leading to release. The
remedy must be sufficiently certain, in theory and in practice, in order to be acces-
sible and effective.
It is particularly important that asylum seekers have access to effective remedies
because they are in a precarious position and could face
refoulement.
Example: In
Abdolkhani and Karimnia v. Turkey,302 two Iranian asylum seekers
had been detained in the police headquarters. The ECtHR found that they had
not had at their disposal any procedure through which the lawfulness of their
detention could have been examined by a court.303
Example: In
S.D. v. Greece,304 an asylum seeker had been detained even
though he could not be expelled pending a decision on his asylum application.
The ECtHR held that he had been in a ‘legal vacuum’ because there was no
provision for direct review of his detention pending expulsion.
6.9. Detention conditions or regimes
The conditions of detention in themselves may breach EU or ECHR law. Both EU and
ECHR law require that detention must comply with other fundamental rights, includ-
ing that conditions of deprivation of liberty must be humane, families should not be
302 ECtHR
, Abdolkhani and Karimnia v. Turkey, No. 30471/08, 22 September 2009.
303 ECtHR
, Z.N.S. v. Turkey, No. 21896/08, 19 January 2010; ECtHR
, Dbouba v. Turkey,
No. 15916/09, 13 July 2010.
304 ECtHR,
S.D. v. Greece,
No. 53541/07, 11 June 2009.
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Detention and restrictions to freedom of movement
separated, and children and vulnerable individuals should normally not be detained
(see Section 6.7 concerning detention of individuals with specific needs and children).305
Under EU law, detention conditions for persons in return procedures are regulated
in Article 16 of th
e Return Directive and for children and families, in Article 17. The
detention conditions of asylum seekers are expected to be regulated in the revised
Reception Conditions Directive.
Under the ECHR, the place, regime and conditions of detention must be ‘appropri-
ate’, otherwise they may raise an issue under Articles 3, 5 or 8 of the ECHR. The
Court will look at the individual features of the conditions and their cumulative ef-
fect. This includes, among other elements: where the individual is detained (airport,
police cell, prison); whether or not other facilities could be used; the size of the con-
tainment area; whether it is shared and with how many other people; availability
and access to washing and hygiene facilities; ventilation and access to open air; ac-
cess to the outside world; and whether the detainees suffer from illnesses and have
access to medical facilities. An individual’s specific circumstances are of particular
relevance, such as if they are a child, a survivor of torture, a pregnant woman,
a victim of trafficking, an older person or a person with disabilities.
The ECtHR takes into account reports of the European Committee for the Prevention
of Torture and Inhuman and Degrading Treatment or Punishment (‘CPT’) when as-
sessing conditions of detention in a specific case. Those reports also provide helpful
guidance to Member States on what conditions are unacceptable.
Example: In the cases
Dougoz,
Peers and
S.D. v. Greece,306
the Court set out
important principles about conditions of detention and also made clear that
detained asylum seekers were particularly vulnerable given their experiences
when fleeing persecution, which could increase their anguish in detention.
Example: In
M.S.S. v. Belgium and Greece,307 the Court found a violation of
Article 3 of the ECHR not only in relation to the applicant’s detention conditions,
305 For more information, see: ECtHR,
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (unaccompanied
child), No. 13178/03, 12 October 2006; ECtHR
, Rantsev v. Cyprus and Russia (victim of trafficking)
No. 25965/04, 7 January 2010
.
306 ECtHR
, Dougoz v. Greece, No. 40907/98, 6 March 2001; ECtHR,
Peers v. Greece,
No. 28524/95, 19 April 2001; ECtHR,
S.D. v. Greece, No. 53541/07, 11 June 2009.
307 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011.
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Handbook on European law relating to asylum, borders and immigration
but also in relation to his general living (reception) conditions in Greece. The
applicant was an Afghan asylum seeker, and the Greek authorities had been
aware of his identity and that he was a potential asylum seeker since his arrival in
Athens. He was immediately placed in detention without any explanation. There
had been various reports by international bodies and NGOs concerning the Greek
authorities’ systematic placement of asylum seekers in detention. The applicant’s
allegations that he was subjected to brutality by the police were consistent with
witness reports collected by international organisations, in particular the CPT.
Findings by the CPT and the UNHCR also confirmed the applicant’s allegations of
unsanitary conditions and overcrowding in the detention centre next to Athens
international airport. Even though the applicant was detained for a relatively
short time, the conditions of detention in the holding centre were unacceptable.
The ECtHR held that the applicant must have experienced feelings of arbitrariness,
inferiority and anxiety, and that the detention conditions had undoubtedly had
a profound effect on his dignity, amounting to degrading treatment. In addition,
he was particularly vulnerable as an asylum seeker because of his migration and
the traumatic experiences he had likely endured. The Court concluded that there
had been a violation of Article 3 of the ECHR.
Relevant soft law sources on this issue include the Council of Europe Twenty Guide-
lines on Forced Return, the European prison rules and the 2005 EU Guidelines on the
treatment of immigration detainees.308
6.10. Compensation for unlawful detention
Damages may be payable to individuals who have been detained unlawfully, as
a matter of both EU and ECHR law.
Under the EU, the ECJ in
Francovich309 established that national courts must pro-
vide a remedy for damages caused by a breach of an EU provision by an EU Mem-
ber State. The principle has not yet been applied to breaches caused by a Member
State’s non-implementation of a directive in the context of immigration detention.
308 Council of Europe, Committee of Ministers (2003) Recommendation Rec(2003)5 of the Committee of
Ministers to member states on measures of detention of asylum seekers; Council of Europe, Committee
of Ministers (2005); Council of Europe, Committee of Ministers (2006) Recommendation Rec(2006)2 of
the Committee of Ministers to member states on the European Prison Rules, 11 January 2006.
309 ECJ, Joined Cases C-6/90 and C-9/90 [1991] ECR I-05357
, Francovich and Bonifaci and Others v. Italian
Republic, 19 November 1991.
160
link to page 239 link to page 239 link to page 219
Detention and restrictions to freedom of movement
Under the ECHR, Article 5 (5) of the ECHR states that “everyone who has been the
victim of arrest or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation”. Thus, for there to be compensation,
there must be a violation of any one or more paragraphs of Article 5 of the ECHR.
Key points
•
Under both EU law and the ECHR, deprivation of liberty must be a measure of last
resort, after exhausting the possibility of less intrusive measures (see Section 6.2).
•
Under the ECHR, the concrete situation of an individual may amount to a deprivation
of liberty under Article 5 of the ECHR or to a restriction on his or her freedom of
movement under Article 2 of Protocol No. 4 to the ECHR (see Section 6.1).
•
Under the ECHR, a deprivation of liberty must be: justified for a specific purpose
defined in Article 5 (1) (a)-(f); be ordered in accordance with a procedure prescribed
by law; and not be arbitrary (see Section 6.3).
•
Under EU law, a deprivation of liberty must be in accordance with the law
(see Section 6.3), necessary and proportionate (see Section 6.5).
•
Under EU law, a maximum length of pre-removal detention has been set at
six months, which can exceptionally be extended for up to a maximum of 18 months
(see Section 6.6.4).
•
Under both EU law and the ECHR, there must be a realistic prospect for removing
someone who is being detained for the purpose of removal (see Section 6.6.3) and
removal procedures have to be carried out with due diligence (see Section 6.6.2).
•
A deprivation of liberty must comply with the procedural safeguards in Article 5 (2)
on the right to be informed of the reasons, and Article 5 (4) of the ECHR on the right
to have the detention decision reviewed speedily (see Section 6.8).
•
Under both EU law and the ECHR, deprivation of liberty or restriction on freedom of
movement must comply with other human rights guarantees, such as: the conditions
of detention respecting human dignity; never putting the health of individuals at
risk; and the need for special consideration of members of vulnerable groups (see
Sections 6.7 and 6.9).
•
An individual who has been detained arbitrarily or unlawfully may have a claim for
damages under both EU law and the ECHR (see Section 6.10).
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law
of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
161
7
Forced returns
and manner of removal
EU
Issues covered
CoE
Return Directive (2008/115/EC)
Carrying out
Committee of Ministers,
Frontex Regulation (amendments),
removal: safe,
Twenty Guidelines on Forced
No. 1168/2011
dignified and
Return, 2005, No. 19
humane
Council Decision on the organisation
of joint flights for removals from the
territory of two or more Member
States, of third-country nationals
who are subjects of individual
removal orders (2004/573/EC)
Asylum Procedures Directive
Confidentiality
Committee of Ministers, Twenty
(2005/85/EC), Article 41
Guidelines on Forced Return,
September 2005, No. 12
EU Charter of Fundamental
Serious harm
ECHR, Article 2 (right to life)
Rights, Article 2 (right to life)
caused by restraint Committee of Ministers, Twenty
Return Directive (2008/115/EC),
measures
Guidelines on Forced Return,
Article 8 (4)
September 2005, No. 19
Investigations
ECtHR,
Ramsahai v. the
Netherlands 2007
(effective system)
ECtHR,
Tarariyeva v. Russia,
2006 (medical care in prisons)
ECtHR,
Tais v. France, 2006
(check of medical conditions
while in custody)
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Handbook on European law relating to asylum, borders and immigration
Introduction
This chapter examines the manner in which an alien is removed from a state. Legal
barriers to removal, such as barriers to removing asylum seekers, are examined in
Chapters 1, 3 and 4.
Whether they are removed by air, land or sea, individuals should be returned in
a safe, dignified and humane manner. There have been incidents of returnees dying
in the removal process because of asphyxiation or suffering serious injury. Deaths
have also occurred in detention centres before the removal could take place. The
removal process may also increase the risk of self-harm or suicide, either during
detention before removal or during the removal itself.
Under EU law, forced returns are regulated by the
Return Directive (2008/115/EC).
Frontex-coordinated joint return operations are regulated by the revised Frontex
Regulation (No. 1168/2011).
The ECtHR has rarely been called on to consider the actual manner of removal.
There is, however, a wealth of case law primarily under Articles 2, 3 and 8 of the
ECHR. This case law regards the authorities’ use of force in general, the need to pro-
tect individuals from harm, as well as the authorities’ procedural obligation to in-
vestigate their handling of situations that allegedly subjected an individual to seri-
ous harm. These general principles may also be applicable in certain circumstances,
such as in the context of forced returns. This will be looked at in more detail.
In addition to legislative provisions, there are important soft law instruments on
this specific issue. The Council of Europe Twenty Guidelines on Forced Return pro-
vides useful guidance and is therefore referred to in several parts of this chapter.310
The CPT standards also include a specific section on returns by air.311
Returns are often made possible through readmission agreements concluded at the
political or operational level. In the EU, readmission agreements can be concluded
by individual Member States or by the Union. In the period 2005-2012, 13 EU read-
mission agreements were concluded and entered into force.312
310 Council of Europe, Committee of Ministers (2005).
311 Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) (2002-2011), Chapter IV, p. 69ff.
312 Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, Former Yugoslav Republic of Macedonia, Bosnia
and Herzegovina, Montenegro, Serbia, Moldova, Pakistan, Georgia (chronological order). Also see:
Commission Staff Working Paper, SEC (2011) 209, 23 February 2011, Table 1.
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Forced returns and manner of removal
7.1. Carrying out removal:
safe, dignified and humane
Under EU law, th
e Return Directive states that forced returns must be carried out
with due respect for the dignity and the physical integrity of the person concerned
(Article 8 (4)). Moreover, voluntary departures are to be given priority (Article 7)
and an effective monitoring system of forced returns has to be established
(Article 8 (6)).313 In an annex to a 2004 Council Decision, the common guidelines on
security provisions for joint removals by air also provide guidance on, among other
things, medical issues, the training and conduct of escort officers, and the use of
coercive measures.314
The
Return Directive requires that the individual’s state of health is taken into
account in the removal process (Article 5). In the case of return by air, this typically
requires medical staff to certify that the person is fit to travel. The person’s physical
and mental health condition may also be the reason for a possible postponement
of the removal (Article 9). Due account has to be given to the right to family life
when implementing removals (Article 3). Domestic legislation and policy may also
address specific health issues, such as women in a late stage of pregnancy.
Th
e Return Directive requires that unaccompanied minors only be returned to family
members, a nominated guardian or to adequate reception facilities (Article 10).
Under the ECHR, an assessment will be made as to whether the injuries or harm
that public officials may have caused to individuals under their custody and control
are of sufficient gravity to engage Article 3 of the ECHR. An individual’s particular
vulnerabilities, such as those deriving from age or from mental health concerns,
have to be taken into account.315
According to the Council of Europe Guidelines on Forced Return, authorities should
cooperate with returnees so as to limit the necessity to use force, and returnees
should be given an opportunity to prepare for the return (Guideline 15). Returnees
must also be fit to travel (Guideline 16).
313 For more information on EU Member State practices, see: FRA (2012) pp. 51-54.
314 Council Decision 2004/573/EC, Council Decision of 29 April 2004 on the organisation of joint flights for
removals from the territory of two or more Member States, of third-country nationals who are subjects
of individual removal orders.
315 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011; ECtHR,
Darraj v. France,
No. 34588/07, 4 November 2010.
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Handbook on European law relating to asylum, borders and immigration
7.2. Confidentiality
It is important to ensure that only the information necessary to facilitate a removal
is passed on to the country of return so as to preserve confidentiality of the infor-
mation obtained in the asylum process. Escorts accompanying a returnee from the
detention centre to their point of return should also ensure such confidentiality.
Under EU law, information obtained during asylum procedures is governed by
Article 41 of the
Asylum Procedures Directive (2005/85/EC) and requires EU Member
States to respect the confidentiality of any information obtained. Article 22 of
the directive provides guarantees of non-disclosure of information to alleged
persecutors when collecting information on individual asylum applicants.
Under the ECHR, a breach of confidentiality might raise issues within the scope of
Article 8 of the ECHR and, where a breach would lead to risk of ill-treatment upon
return, it may fall within Article 3 of the ECHR. However, in a different context, the
Court has held that any measure that interferes with privacy must be subject to de-
tailed rules and minimum safeguards that provide sufficient guarantees against the
risk of abuse and arbitrariness. These safeguards must concern, among other things,
duration, storage, usage, access of third parties, procedures for preserving data in-
tegrity and confidentiality, and procedures for data destruction.316
The Council of Europe Twenty Guidelines on Forced Return also address respect and
restrictions imposed on the processing of personal data and the prohibition of shar-
ing information related to asylum applications (Guideline 12).
7.3. Serious harm caused by restraint
measures
Under domestic law, state agents, such as custody officers or escort staff, may be
empowered to use force in the exercise of their functions. Both EU law and the ECHR
stipulate that such force has to be reasonable, necessary and proportionate.
EU law and the ECHR set down common standards applicable to death in custody
cases. The right to life is guaranteed under Article 2 of both the EU Charter of
Fundamental Rights and the ECHR. Article 2 is one of the most important rights,
316 ECtHR
, S. and Marper v. the United Kingdom [GC],
No. 30562/04, 4 December 2008, para. 99.
166
Forced returns and manner of removal
from which no derogation is provided for under Article 15 of the ECHR. The ECHR
does set out, however, that the use of force, particularly lethal force, is not in
violation of Article 2 if the use of force is ‘absolutely necessary’ and is ‘strictly
proportionate’.317
Under EU law, the
Return Directive sets out rules on coercive measures. Such meas-
ures are to be used as a last resort and must be proportionate and not exceed rea-
sonable force. They have to be implemented with due respect for the dignity and
physical integrity of the person concerned (Article 8 (4)).
Under the ECHR, case law relating to Article 2 of the ECHR requires a legislative,
regulatory and administrative framework governing the use of force by state agents
in order to protect against arbitrariness, abuse and loss of life, including avoidable
accidents. Personnel structure, channels of communication and guidelines on the
use of force need to be clearly and adequately set out within such a framework.318
Where state agents exceed the amount of force they are reasonably entitled to use
and this leads to harm, or even death, the Member State may be held accountable.
There needs to be an effective investigation into what happened that is capable of
leading to a prosecution.319
The Court has held that Member States not only have ‘negative’ obligations not to
harm individuals, but also ‘positive’ obligations to protect individuals against loss of
life or serious injury, including from third parties or from him- or herself, as well
as to provide access to medical services. The Member State’s obligation to protect
also encompasses a duty to establish legal provisions and appropriate procedures, in-
cluding criminal provisions to prevent offences against a person, with accompanying
sanctions to deter the commission of such offences.320 The question is whether the
authorities have done all that could reasonably be expected of them in order to avoid
a real and immediate risk to life which they knew of or ought to have known of.321
317 European Commission of Human Rights,
Stewart v. the United Kingdom (dec.), No. 10044/82,
10 July 1984; ECtHR,
McCann and Others v. the United Kingdom, No. 18984/91, 27 September 1995,
paras. 148-149.
318 ECtHR
, Makaratzis v. Greece [GC], No. 50385/99, 20 December 2004, para. 58; ECtHR
, Nachova and
Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, 6 July 2005, para. 96.
319 ECtHR,
McCann and Others v. the United Kingdom, No. 18984/91, 27 September 1995, para. 161; ECtHR,
Velikova v. Bulgaria, No. 41488/98, 18 May 2000, para. 80.
320 ECtHR
, Osman v. the United Kingdom [GC], No. 23452/94, 28 October 1998; ECtHR,
Mastromatteo
v. Italy [GC], No. 37703/97, 24 October 2002, paras. 72-73; ECtHR,
Finogenov and Others v. Russia,
Nos. 18299/03 and 27311/03, 20 December 2011, para. 209.
321 ECtHR
, Branko Tomašić and Others v. Croatia, No. 46598/06, 15 January 2009, para. 51.
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Handbook on European law relating to asylum, borders and immigration
In considering the legality of the use of force, the ECtHR has looked at several fac-
tors, including the nature of the aim pursued and the bodily and life danger in-
herent in the situation. The Court looks at the circumstances of a particular use of
force, including whether it was deliberate or unintentional, and whether there was
adequate planning and control of the operation.
Example: In
Kaya v. Turkey,322 the ECtHR reiterated that the member state must
consider the force employed and the degree of risk that it may result in the loss
of life.
The use of restraint may not only raise issues under Article 2, which involves a loss
of life or a near-death situation, such as attempted suicide that causes lasting harm,
but also under Articles 3 and 8 in situations where the individual is harmed or in-
jured through use of restraint that falls short of unlawful killing.
Example: In
Ilhan v. Turkey,323 the Court found that Article 3 of the ECHR, rather
than Article 2, was breached where the individual suffered brain damage as
a result of the use of excessive force upon arrest.
The ECtHR has expressed concerns about incidents involving police or other officers
taking part in ‘interventions’ against individuals in the context of Article 8 of the
ECHR.324
Death or injury may be caused by coercive restraint techniques or by the Member
State’s failure to prevent loss of life, including from self-harm or for medical rea-
sons.325 In this sense, the Council of Europe Twenty Guidelines on Forced Return ban
restraint measures likely to obstruct the airways, partially or wholly, or forcing the
returnee into positions where he or she risks asphyxia (Guideline 19).
322 ECtHR
, Kaya v. Turkey, No. 22729/93, 19 February 1998.
323 ECtHR
, Ilhan v. Turkey [GC], No. 22277/93, 27 June 2000, paras. 77 and 87.
324 ECtHR
, Kučera v. Slovakia, No. 48666/99, 17 July 2007, paras. 122-124; ECtHR,
Rachwalski and Ferenc
v. Poland, No. 47709/99, 28 July 2009, paras. 58-63.
325 See, for example, the United Kingdom case of
FGP v. Serco Plc & Anor [2012] EWHC 1804 (Admin),
5 July 2012.
168
Forced returns and manner of removal
7.4. Investigations
Under the ECHR, general principles developed primarily under Articles 2, 3 and 8 of
the ECHR may in certain circumstances also be applicable in the context of forced
returns. There must be some form of effective and official investigation when an
individual loses his or her life or suffers serious injury at the hands of the Member
State, or when this occurs in circumstances where the Member State may be held
responsible, such as if the individual is in custody. The Member State may remain
liable even if it outsources parts of its work in removal situations to private compa-
nies. A minimum level of effectiveness must be satisfied, which depends on the cir-
cumstances of the case.326 There must be effective accountability and transparency
to ensure respect for the rule of law and to maintain public confidence.327
Where an individual is found dead or injured and is or has been subject to the cus-
tody or control of the Member State, the burden lies on the Member State to pro-
vide a satisfactory and convincing account of the events in question. For example,
a breach of Article 2 was found where the government asserted death from natural
causes without any other satisfactory explanation for death or defective postmor-
tem.328 Similarly, there were also examples of breaches of Article 2 found in cases
on defective medical care in a prison hospital329 and shortcomings in the examina-
tion of the applicant’s condition while in custody.330
For an Article 2 compliant investigation, the essential criteria are that it should be:
independent; prompt; involve the family; be adequate and effective. The investi-
gation and its results should also be open to public scrutiny. The onus is on the
authorities to launch the investigation of their own initiative and without waiting
for a complaint to be made. In a hierarchical, institutional and practical sense, the
investigation should be conducted by an officer or body who is independent from
those implicated in the events.331
326 ECtHR
, McCann and Others v. the United Kingdom [GC], No. 18984/91, 27 September 1995, para. 161;
ECtHR,
Velikova v. Bulgaria, No. 41488/98, 18 May 2000, para. 80.
327 ECtHR
, Ramsahai and Others v. the Netherlands [GC], No. 52391/99, 15 May 2007, para. 325.
328 ECtHR
, Tanlı v. Turkey, No. 26129/95, 10 April 2001, paras. 143-147.
329 ECtHR
, Tarariyeva v. Russia, No. 4353/03, 14 December 2006, para. 88.
330 ECtHR,
Taïs v. France, No. 39922/03, 1 June 2006.
331 ECtHR
, Finucane v. the United Kingdom,
No. 29178/95, 1 July 2003, para. 68.
169
link to page 239 link to page 239 link to page 219
Handbook on European law relating to asylum, borders and immigration
Key points
•
Removals have to be carried out safely, humanely and must protect the dignity of
the individual (see Section 7.1).
•
Individuals should be fit to travel, having regard to their physical and mental health
(see Section 7.1).
•
Special care should be taken with regard to vulnerable persons, including children,
as well as those at risk of suicide or self-harm (see Section 7.1).
•
Under EU law, Member States have to establish effective return monitoring systems
(see Section 7.1).
•
The
Return Directive requires that unaccompanied minors only be returned to
family members, a nominated guardian or to adequate reception facilities (see
Section 7.1).
•
Confidentiality of information obtained in the asylum process should be ensured
(see Section 7.2).
•
Under both EU law and the ECHR, any use of coercive measures must be reasonable,
necessary and proportionate (see Section 7.3).
•
Under the ECHR, the authorities are required to investigate arguable allegations of
excessive use of force (see Section 7.4).
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
170
8
Economic
and social rights
EU
Issues covered
CoE
EU Charter of Fundamental Rights,
Economic rights ECHR, Article 4 (prohibition of
Articles 12 (freedom of assembly
slavery and forced labour)
and association), 15 (1) (freedom
ECHR, Article 11 (freedom
to choose an occupation and right
of association)
to engage in work), 16 (freedom
to conduct a business), 28 (right of
ECtHR,
Bigaeva v. Greece, 2009
collective bargaining and action),
(foreigner allowed to complete
29 (right of access to placement
professional training but not allowed
services), 30 (protection in the
to sit related examination)
event of unjustified dismissal),
31 (fair and just working
conditions) and 32 (prohibition
of child labour and protection
of young people at work)
Access to the labour market is
regulated by secondary EU law
for each specific category
Charter, Article 14 (right to
Education
ECHR, Protocol No. 1, Article 1
education for everyone)
(right to education)
Return Directive (2008/115/EC),
ESC, Articles 17 (right of children
Article 14 (1) (migrants in
to social, legal and economic
an irregular situation)
protection), 18 (right to engage in
Reception Conditions
a gainful occupation) and 19 (right of
Directive (2003/9/EC),
migrant workers and their families
Article 10 (
asylum seekers)
to protection and assistance)
ECtHR,
Ponomaryovi v.
Bulgaria, 2011 (migrants in an
irregular situation charged higher
fees for secondary education)
European Commission of Human Rights,
Karus v. Italy, 1998 (foreigners charged
higher fees for tertiary education)
171
Handbook on European law relating to asylum, borders and immigration
EU
Issues covered
CoE
EU Charter of Fundamental
Housing
ECtHR,
Gillow v. the United Kingdom,
Rights, Article 34 (3) (social
1986 (right to respect for home)
security and social assistance)
ECtHR,
M.S.S. v. Belgium, 2011 (failure
For third-country national family
to provide housing can amount to
members of EEA nationals, long-
a violation of Article 3 of the ECHR)
term residents, asylum seekers,
ESC, Article 31 (right to housing)
refugees, subsidiary protection
status holders and victims of
ECSR,
DCI v. the Netherlands,
trafficking, rules on housing are
2009 (housing for children
contained in secondary EU law
in an irregular situation)
Charter, Article 35 (healthcare)
Healthcare
ESC, Article 13 (the right to social
Healthcare is regulated by secondary
and medical assistance)
EU law for each specific category
ECSR,
FIDH v. France, 2004
For third-country national family
Social security ECtHR,
Wasilewski v. Poland, 1999
members of EEA nationals:
and assistance
(no right to financial assistance)
Free Movement Directive
ECtHR,
Gaygusuz v. Austria,
(2004/38/EC), Articles 24 and 14
1996 (discrimination of foreigners as
Coordination of Social Security
regards unemployment benefits)
Regulation, 883/2004/EC,
ECtHR,
Koua Poirrez v. France,
amended by 465/2012/EU
2003 (discrimination of foreigners
For third-country national
as regards disability benefits)
moving within the EU:
ECtHR,
Andrejeva v. Latvia,
Regulations 859/2003
2009 (discrimination of foreigners
and 1231/2010
as regards pensions)
Other categories:
ESC, Articles 12 (right to social security),
13 (right to social and medical
Secondary EU law has specific
assistance), 14 (right to benefit from
entitlements for asylum seekers,
social welfare services), 15 (rights of
refugees, persons granted subsidiary
persons with disabilities), 17 (right of
protection, victims of trafficking
children to social, legal and economic
and long-term residents
protection), 23 (communication of
reports) and 30 (protection against
poverty and social exclusion)
Introduction
For most migrants, being permitted to enter or to remain in a state is only the first
step in establishing full residence rights. Accessing employment, education, hous-
ing, healthcare, social security, social assistance and other social benefits can be
a challenging exercise. An acknowledged right to enter or remain is normally neces-
sary for accessing the full range of social rights.
States are generally permitted to differentiate between nationalities when they
are exercising their sovereign right to permit or deny access to their territory.
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Economic and social rights
In principle, it is not unlawful to enter agreements or pass national legislation per-
mitting certain nationalities privileged rights to enter or remain in the state’s terri-
tory. States are therefore normally also permitted to attach differentiated conditions
to such entry or residence, such as stipulating that there should be no access to
employment or no recourse to public funds. States must bear in mind, however,
that international and European human rights instruments prohibit discrimination,
including on the ground of nationality, in the respective fields they regulate.332
The more a particular situation falls under a state’s sovereign right to admit or ex-
clude foreigners, the more discretion the state has in imposing differentiated condi-
tions.333 Differentiated treatment becomes less acceptable the more similar a foreign-
er’s immigration situation is to the situation of a state’s own citizens.334 Where core
fundamental rights are concerned, such as the right to life or the prohibition on de-
grading treatment, differentiated treatment amounts to prohibited discrimination.335
These principles are of particular importance when looking at access to social rights.
This chapter provides a brief overview of both EU and Council of Europe standards
relating to access to economic and social rights, namely the right to work, educa-
tion, housing, healthcare and social protection.
8.1. Main sources of law
Under EU law, EU free movement provisions have a significant impact on the
situation of third-country national family members of EU citizens who have exer-
cised their right to free movement within Europe. The
Free Movement Directive
(2004/38/EC) regulates the situation of their family members of whatever nation-
ality. Article 2 (2) of the directive defines which family members are covered by
the directive. The directive also applies to third-country national family members
of citizens from Iceland, Liechtenstein and Norway.336 Family members of Swiss
citizens enjoy a similar status.337 The family members covered by these different
332 CFR, Art. 21; ECHR, Art. 14 and Protocol No. 12, Art. 1; ESC, Part V, Art. E.
333 ECtHR
, Bah v. the United Kingdom, No. 56328/07, 27 September 2011.
334 ECtHR
, Gaygusuz v. Austria, No. 17371/90, 16 September 1996.
335 ECSR,
Defence for Children International v. the Netherlands, No. 47/2008, 20 October 2009.
336 Agreement on the European Economic Area, 2 May 1992, Part III, Free Movement of Persons, Services
and Capital, OJ L 1 of 3 March 1994.
337 Agreement between the European Community and its Member States, of the one part, and the Swiss
Confederation, of the other, on the free movement of persons, 21 June 1999, Art. 7, OJ L 114/7,
30 April 2002 (subsequently extended to other EU Member States).
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Handbook on European law relating to asylum, borders and immigration
provisions are not only entitled to access the labour market, but also have access
to social benefits.
Under EU law, Turkish citizens, although not EEA nationals, and their family mem-
bers have a privileged position in EU Member States. This derives from the Ankara
Agreement of 1963 and its 1970 Additional Protocol which assumed that Turkey
would become a member of the EU by 1985. As at 2010, there were almost 2.5 mil-
lion Turkish nationals residing in the EU, making Turkish nationals the largest group
of third-country nationals residing in the EU. 338
The degree of access to the labour market of other categories of third-country na-
tionals, such as asylum seekers, refugees or long-term residents, is regulated by
specific directives. In December 2011, the EU adopted the
Single Permit Directive (2011/98/EU), which will introduce a single application procedure for third-country
nationals to reside and work in an EU Member State’s territory, as well as a common
set of rights for legally residing third-country national workers.
In addition, the
Racial Equality Directive (2000/43/EC) prohibits discrimination on
the basis of race or ethnicity in the context of employment and when accessing
goods and services as well as the welfare and social security system.339 It also
applies to third-country nationals; according to Article 3 (2) of the directive,
however, it “does not cover differences of treatment based on nationality and is
without preju dice [...] to any treatment which arises from the legal status of the
third-country nationals and stateless persons concerned”.
Th
e Community Charter of the Fundamental Social Rights of Workers was adopted
on 9 December 1989 by a declaration by all Member States, with the exception of
the United Kingdom. It established the major principles that form the basis of the
European labour law model, and shaped the development of the
European social model in the following decade. The fundamental social rights declared in the Com-
munity Charter are further developed and expanded in the EU
Charter of Funda-
mental Rights. The Charter is limited in its application to those matters which fall
within the scope of EU law, and its provisions cannot expand the scope of EU law.
Under the EU Charter of Fundamental Rights, very few social rights are guaranteed
to all individuals, like the right to education in Article 14 (1) (2), as most of rights
are restricted to citizens and/or those who are lawfully resident.
338 European Commission, Eurostat (2010), ‘Main countries of origin of non-nationals, EU-27, 2010’,
available at: http://epp.eurostat.ec.europa.eu/statistics_explained/index.php?title=File:Main_countries_
of_origin_of_non-nationals,_EU-27,_2010_(million).png&filetimestamp=20111125175250#file.
339 Directive 2000/43/EC, OJ L 180/22.
174
Economic and social rights
Under the Council of Europe system, the ECHR mainly guarantees civil and politi-
cal rights and thus provides only limited guidance on economic and social rights.
The ESC (adopted in 1961 and revised in 1996), however, supplements the ECHR and
is a key reference for European human rights law in the field of economic and social
rights. It lays down fundamental rights and freedoms and establishes a supervisory
mechanism based on a reporting procedure and a collective complaints procedure,
guaranteeing the respect of ESC rights by State Parties. The ESC enshrines a body of
rights that encompass housing, health, education, employment, social protection,
the free movement of individuals and non-discrimination.
Although the ESC’s protection for migrants is not based on the principle of reciproc-
ity, its provisions apply at the outset only to nationals of member states that have
ratified the ESC and who are migrants in other member states that have also ratified
the ESC. According to the ESC Appendix, Articles 1-17 and 20-31 of the ESC, while
not specifically referring to them, apply to foreigners provided they are nationals
of member states party to the ESC lawfully resident or working regularly within the
territory of a member state party to the ESC. These articles are to be interpreted in
light of Articles 18 and 19 on migrant workers and their families. Article 18 secures
the right to engage in a gainful occupation in the territory of the member states
party to the ESC, and Article 19 secures the right of migrant workers and their fami-
lies to protection and assistance.
The ESC’s scope of application is thus somewhat limited, but the ECSR has devel-
oped a significant body of jurisprudence. When certain fundamental rights are at
stake, ECSR case law has extended the ESC’s personal scope to cover everyone in
the territory, including migrants in an irregular situation.340
The ESC has an important relationship to the ECHR that gives ECSR case law con-
siderable value. Even though not all EU and Council of Europe Member States have
ratified the ESC or accepted all of its provisions, the ECtHR has held that ratification
is not essential for the Court’s interpretation of certain issues raised under the ECHR
that are also regulated by the ESC. 341
340 ECSR,
International Federation of Human Rights Leagues v. France, Complaint No. 14/2003,
merits, 8 September 2004.
341 ECtHR
, Demir and Baykara v. Turkey [GC], No. 34503/97, 12 November 2008, paras. 85-86. Other
examples of relevant international instruments applicable in this field include the International
Covenant on Economic, Social and Cultural Rights (ICESCR), the UN Convention on Migrant Workers and
ILO Convention 143.
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Handbook on European law relating to asylum, borders and immigration
8.2. Economic rights
This section looks at economic rights, including access to the labour market and the
right to equal treatment at work. Access to the labour market is usually depend-
ent upon a person’s legal status. From the moment a person is working, however,
whether lawfully or not, core labour rights have to be respected. Similarly, regard-
less of legal status, workers are entitled to receive any payment due for the work
they have carried out.
Under the ECHR,
economic and social rights are not explicitly guaranteed, with the
exception of the prohibition of slavery and forced labour (Article 4) and the right to
form trade unions (Article 11).
Among ECtHR cases in related areas, the Court has examined the situation of a for-
eigner who had been allowed to commence training for a certain profession and
was then denied the right to exercise it.
Example: In
Bigaeva v. Greece,342 a Russian citizen had been permitted to
commence an 18-month traineeship with a view to being admitted to the
Greek Bar. Upon completion, the Bar Council refused her permission to sit for
the Bar examinations on the grounds that she was not a Greek national. The
ECtHR noted that the Bar Council had allowed the applicant to commence her
traineeship although it was clear that on completion she would not be entitled
to sit for the Bar examinations. The Court found that the authorities’ conduct
had shown a lack of consistency and respect towards the applicant both
personally and professionally, and had constituted an unlawful interference
with her private life within the meaning of Article 8 of the ECHR. The ECtHR did
not find, however, that excluding foreigners from the law profession was, in
itself, discriminatory.
Under the ESC, Article 18 provides for the right to engage in a gainful occupation in
the territory of other member states party to the ESC. This provision does not regu-
late entry to the territory for work purposes and is in some respects exhortatory
rather than mandatory. It does require, however, that work permit refusal rates be
not too high;343 that work and residence permits be obtainable by means of a single
342 ECtHR,
Bigaeva v. Greece, No. 26713/05, 28 May 2009.
343 ECSR, Conclusions XVII-2, Spain, Art. 18 (1).
176
Economic and social rights
application procedure and without excessive fees and charges;344 that any work per-
mits granted be not too restrictive geographically and/or occupationally;345 and loss
of employment need not automatically and immediately lead to loss of residence
permit, giving the person time to look for another job.346
Article 19 of the ESC includes an extensive catalogue of provisions supporting mi-
grant workers on the territory of other State Parties, but with the stipulation that
they must be there lawfully (see, however, Chapter 3 for details on Article 19 (8)).
The ESC also covers working conditions, such as the right to reasonable working
hours, the right to paid annual leave, the right to health and safety at the work-
place, and the right to fair remuneration.347
Under EU law, one of the freedoms enshrined in the EU Charter of Fundamental
Rights
is “the right to engage in work and to pursue a freely chosen or accepted
occupation” (Article 15 (1) of the Charter). This right is, however, circumscribed by
national law, including national laws regulating the right for foreigners to work. The
Charter recognises the right to collective bargaining (Article 28) and the freedom to
form trade unions (Article 12). It also grants everyone the right to free placement
services (Article 29). Every worker, including non-EU nationals, enjoys protection
from unjustified dismissals (Article 30), the right to fair and just working conditions,
as well as the right to rest and to paid annual leave (Article 31). Article 16 guaran-
tees the freedom to conduct business. The Charter also provides for the protection
of health and safety at work (Article 31). It also prohibits child labour (Article 32).
Secondary EU law devoted to a specific category of persons usually regulates access
to the labour market. Third-country nationals have differing degrees of access to the
labour market depending on the category to which they belong. Sections 8.2.1-8.2.9
briefly outline the situation of the main categories of third-country nationals.
344 ECSR, Conclusions XVII-2, Germany, Art. 18 (2).
345 ECSR, Conclusions V, Germany, Art. 18 (3).
346 ECSR, Conclusions XVII-2, Finland, Art. 18 (3).
347 ECSR,
Marangopoulos Foundation for Human Rights v. Greece, Complaint No. 30/2005, merits,
6 December 2006, which refers to mine workers.
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Handbook on European law relating to asylum, borders and immigration
8.2.1. Family members of EEA and Swiss nationals
Under EU law, designated family members – of whatever nationality – of EU citizens
who exercise free movement rights as well as of other EEA citizens and Swiss citi-
zens have the right to move freely throughout Europe for the purposes of employ-
ment and self-employment, and have the right to treatment equal to a Member
State’s own nationals (Article 24 of th
e Free Movement Directive for EU nationals).
Family members of Swiss nationals do not have the right to full equality of treat-
ment in this respect.348 Temporary restrictions to access the labour market have
been placed on Bulgarian and Romanian nationals and their family members until
June 2013. Similar transitional provisions will apply to Croatia after its expected ac-
cession to the EU in July 2013.
In the context of the free movement of citizens and their family members of what-
ever nationality, Article 45 (4) of the TFEU makes provision for Member States to
reserve employment in the public service for their own nationals. The ECJ has inter-
preted this strictly and has not allowed Member States to reserve access to certain
positions for nationals only, for example to work as a trainee teacher349 or a foreign
language university assistant.350
To facilitate the genuine free movement of workers, the EU has also adopted com-
plex legislation concerning the mutual recognition of qualifications, both in general
and per sector, which apply to third-country national family members as well as to
EEA nationals. Directive
2005/36/EC on the recognition of professional qualifications
was last consolidated in March 2011 (note also amendments). There are complex
provisions relating to those who have obtained all or part of their qualifications
outside the EU, even if those qualifications have already been recognised in one
EU Member State. The ECJ/CJEU has handed down more than 130 judgments in this
field.351
348 CJEU, C-70/09 [2010] ECR I-07233
, Alexander Hengartner and Rudolf Gasser v. Landesregierung
Vorarlberg, 15 July 2010, paras. 39-43.
349 ECJ, C-66/85 [1986] ECR I-02121
, Deborah Lawrie-Blum v. Land Baden-Württemberg, 3 July 1986,
paras. 26-27.
350 ECJ, Joined Cases C-259/91, C-331/91 and C-332/91 [1993] I-04309
, Pilar Allué and Carmel
Mary Coonan and Others v. Università degli studi di Venezia and Università degli studi di
Parma, 2 August 1993, paras. 15-21.
351 For a complete list of the judgments with summaries
, see: http://ec.europa.eu/internal_market/
qualifications/doc.judgments/list_en.
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Economic and social rights
8.2.2. Posted workers
Those third-country nationals not enjoying free movement rights but who are law-
fully working for an employer in one Member State, and who are temporarily sent
by that employer to carry out work on its behalf in another Member, State are cov-
ered by the
Posting of Workers Directive (96/71/EC). The purpose of the directive
is to guarantee the protection of posted workers’ rights and working conditions
throughout the European Union in order to prevent “social dumping”. More explicit-
ly, the directive is aimed at reconciling the freedom to provide cross-border services
under Article 56 of the TFEU with appropriate protection of the rights of workers
temporarily posted abroad for that purpose.352 As the ECJ highlighted, this cannot
however lead to a situation in which an employer is obliged under the directive
to respect the relevant labour law of both the sending state and the host country,
as the protection standard granted in the two Member States can be regarded as
equivalent.353
To that extent, the directive sets out minimum standards that must apply to em-
ployees from one Member State posted to work in another. Specifically, Article 3 of
the directive provides that terms and conditions established by the host country’s
legislation or by universally applicable collective agreements, apply to posted work-
ers, especially in relation to minimum work periods, breaks, annual holidays and
rates of pay.
In March 2012, the European Commission proposed a directive354 which seeks to
improve the implementation and enforcement of the existing
Posting of Workers
Directive.
8.2.3. Blue Card holders, researchers and students
After two years of legal employment, third-country nationals who hold EU Blue
Cards are entitled to equal treatment with nationals as regards access to any highly
qualified employment in the host Member State. After 18 months of legal residence
in one Member State, the EU Blue Card holder may move to another Member State
352 ECJ, C-346/06 [2008] I-01989
, Dirk Rüffert v. Land Niedersachsen, 3 April 2008.
353 ECJ, C-341/05 [2007] I-11767
, Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet,
Svenska Byggnadsarbetareförbundets avdelning 1 Byggettan and Svenska Elektrikerförbundet,
18 December 2007.
354 European Commission (2012)
Proposal for Directive concerning the enforcement of the provision
applicable to the posting of workers in the framework of the provision of services, COM(2012)131 final.
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Handbook on European law relating to asylum, borders and immigration
to take up highly qualified employment, subject to the Member State’s limits on the
number of non-nationals accepted.
Under Article 15 (6) of the
Blue Card Directive (2009/50/EC), the family members
of EU Blue Card holders, of whatever nationality, acquire an automatic general right
to access the labour market. Unlike th
e Family Reunification Directive (2003/86/EC),
the
Blue Card Directive does not impose a time limit for acquiring this right.
Researchers are covered by th
e Scientific Research Directive (2005/71/EC; for a list
of participating Member States, see Annex 1). An applicant must present a valid
travel document, a hosting agreement signed with a research organisation, and
a financial responsibility statement; in addition the applicant must not be consid-
ered to pose a threat to public policy, public security or public health. The issue
of residence permits for researchers’ family members remains at the discretion of
Member States. This directive, much like the
Single Permit Directive, does not grant
rights of family reunification to family members living in third countries.
Th
e Students Directive (2004/114/EC) regulates third-country nationals
admitted
to the EU for study, pupil exchange, unremunerated training or voluntary service.
Member States have to allow students
to work outside of study time for a maxi-
mum number of hours per week as set by the Member State, but the Member State
may also require that certain other conditions be fulfilled (Article 17).
8.2.4. Turkish citizens
Turkish citizens have a particularly privileged position under the 1963 Ankara Agree-
ment and its 1970 Additional Protocol, as well as the decisions taken by the EEC-
Turkey Association Council set up under those instruments. Turkish citizens do not
have the direct right to enter any EU Member State in order to take up employment.
If a Member State’s national law, however, permits them to take up employment,
they then have the right to continue in that same employment after one year.355
After three years, under certain conditions, they may also seek other employment
under Article 6 (1) of Decision No. 1/80 of the EEC-Turkey Association Council. Like
EEA workers, Turkish workers are defined in a broad manner.
355 ECJ, C-386/95 [1997] I-02697
, Eker v. Land Baden-Wüttemberg, 29 May 1997, paras. 20-22.
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Economic and social rights
Example: In the
Tetik case,356 the German authorities did not want to grant
Mr Tetik a residence permit after he completed his three years and was looking
for other employment. The ECJ found that he had to be permitted a reasonable
period of lawful residence in order to seek the work he was entitled to take up,
should he find it.
Example: The CJEU concluded in
Genc357 that a Turkish national who only works
a particularly limited number of hours, namely 5.5 hours per week, for an
employer in return for remuneration that only partially covers the minimum
necessary for her subsistence is a worker within the meaning of Article 6 (1) of
Decision No. 1/80 of the Association Council, provided that her employment is
real and genuine.
Under Article 7 of Decision No. 1/80, family members of a Turkish worker, even
if the family members are not Turkish citizens themselves, can access the labour
market after they have been legally residing for three years. Objective reasons may
justify the family member concerned living apart from the Turkish migrant worker.358
A child of a Turkish national who has completed vocational training in the host
country may respond to employment offers, provided one of the parents has been
legally employed in the host country for at least three years.
Example: In the
Derin case,359 the ECJ held that a Turkish national, who as
a child joined his Turkish parents legally working in Germany, could only lose
the right of residence in Germany, which was derived from a right to free
access to employment, on grounds of public policy, public security or public
health, or if he were to leave the Member State’s territory for a significant
period of time without good reason.
In relation to the right of establishment or the provision of services, Turkish citizens
benefit from the standstill clause in Article 41 of the Additional Protocol to the An-
kara Agreement. If no visa or work permit requirement was imposed on Turkish
citizens at the time Article 41 of the Protocol came into force in a particular Member
State, then that Member State is prohibited from now imposing a visa or work per-
mit requirement (see also Section 2.8).
356 ECJ, C-171/95
, Recep Tetik v. Land Berlin, 23 January 1997, para. 30.
357 CJEU, C-14/09 [2010] I-00931,
Hava Genc v. Land Berlin, 4 February 2010, paras. 27-28.
358 ECJ, C-351/95 [1997] ECR I-02133
, Kadiman v. State of Bavaria, 17 April 1997, para. 44.
359 ECJ, C-325/05 [1997] ECR I-00329
, Ismail Derin v. Landkreis Darmstadt-Dieburg, 18 July 2007, paras. 74-75.
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Handbook on European law relating to asylum, borders and immigration
8.2.5. Long-term residents and beneficiaries of the
Family Reunification Directive
Persons who have acquired long-term resident status
under Article 11 (a) of the
Long-Term Residents Directive (2003/109/EC) enjoy equal treatment with nationals
as regards access to paid and unpaid employment; conditions of employment and
working conditions (including working hours, health and safety standards, holiday
entitlements, remuneration and dismissal); and freedom of association and union
membership and freedom to represent a union or association.
For beneficiaries of the
Family Reunification Directive (see also Chapter 5), the
family member of a legally residing third-country national sponsor is entitled to
access to employment and self-employed activity (Article 14). Access to the la-
bour market is subject to a time limit after arrival in the host state that cannot
exceed 12 months. During this time, the host state can consider whether its labour
market can accept him or her.
8.2.6. Nationals of other countries with association
or cooperation agreements
Article 216 of the TFEU provides for the conclusion of agreements between third
countries and the EU, with Article 217 providing specifically for association agree-
ments. Citizens of certain states with whom the EU has concluded association, stabi-
lisation, cooperation, partnership and/or other types of agreements360 enjoy equal
treatment in many respects, but they are not entitled to the full equal treatment
that is enjoyed by EU citizens. As at the end of 2012, the EU had concluded agree-
ments with over 103 states.361
These association and cooperation agreements do not create a direct right for their
nationals to enter and work in the EU. Nationals from these countries working
legally in a given EU Member State are, however, entitled to equal treatment and
the same working conditions as the nationals of that Member State. This is, for
360 Stabilisation and Association Agreements are in place with Albania, the former Yugoslav Republic of
Macedonia, Bosnia and Herzegovina, Montenegro and Serbia. Partnership and cooperation agreements
exist with 13 Eastern European and Central Asian countries; the original agreements with Morocco,
Tunisia and Algeria have now been replaced by the Euro-Mediterranean agreements. Agreements have
been signed with the 79 Afro-Caribbean Pacific states (the Cotonou Agreements), and with Chile.
361 For an up-to-date and comprehensive overview of the impact of these agreements on nationals of
those states and their family members, see Rogers, N.
et al. (2012), Chapters 14-21.
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example, the case of Article 64 (1) of the Euro-Mediterranean Agreements with
Morocco and Tunisia, which establishes that “the treatment accorded by each
Member State to workers of Moroccan [or Tunisian] nationality employed in its
territory shall be free from any discrimination based on nationality, as regards
working conditions, remuneration and dismissal, relative to its own nationals”.362
For temporary employment, non-discrimination is limited to working conditions
and remuneration (Article 64 (2)). Article 65 (1) of both agreements also introduced
non-discrimination in the field of social security.363
The ECJ/CJEU has dealt with a number of cases relating to these agreements.364
Some of these have concerned the possibility of renewing, for work purposes,
a third-country national’s residence permit, after having lost their rights of resi-
dence as a dependant due to a breakdown in a relationship.
Example: The
El Yassini365 case concerned a Moroccan national who lost the
initial reason for his stay and was subsequently refused an extension of his
residence permit, regardless of his gainful employment. In this case, the
Court had to ascertain whether the approach taken in its case law concerning
Turkish nationals366 was also applicable by analogy to Moroccan nationals,
and therefore whether Article 40 of the EEC-Morocco Agreement (later
replaced by the Euro-Mediterranean Agreement with Morocco) included
employment security for the whole duration of employment, as contractually
determined between the employer and employee. The ECJ found that the EEC-
Morocco Agreement was directly applicable, as it set up clear, unconditional
362 Euro-Mediterranean Agreement establishing an association between the European Communities and
their Member States, of the one part, and the Kingdom of Morocco, of the other part, entered into force
on 1 March 2000, OJ 2000 L70 p. 2, and Euro-Mediterranean Agreement establishing an association
between the European Communities and their Member States, of the one part, and the Republic of
Tunisia, of the other part (entered into force on 1 March 1998, OJ 1998 L97, p. 2).
363 ECJ, C-18/90 [2009] ECR I-00199
, Office National de l’emploi v. Kziber, 31 January 1991.
364 Some cases related to the agreements are: ECJ, C-18/90 [2009] ECR I-00199,
Office National de l’emploi
v. Kziber, 31 January 1991; (Cooperation Agreement between the European Economic Community and
the Kingdom of Morocco, Art. 41 (1)
allocation d’atteinte, OJ 1978 L 264 pp. 2–118, superseded by the
EU-Morocco Euro-Mediterranean Association Agreement); ECJ, C-416/96 [1999] ECR I-01209,
El Yassini
v. Secretary of State for the Home Department, 2 March 1999 (Cooperation Agreement between the
European Economic Community and the Kingdom of Morocco); ECJ, C-438/00 [2003] I-04135
, Deutscher
Handballbund v. Kolpak, 8 May 2003 (Slovak Republic).
365 ECJ, C-416/96 [1999] ECR I-01209,
El Yassini v. Secretary of State for the Home Department,
2 March 1999, paras. 64, 65, 67.
366 ECJ, C-237/91 [1992] ECR I-6781,
Kazim Kus v. Landeshauptstadt Wiesbaden, 16 December 1992,
paras. 21-23 and 29.
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and sufficiently practical principles in the field of working conditions and
remuneration. The Court nevertheless excluded the fact that case law
concerning the Ankara Agreement could have been applied to the present case.
The Ankara Agreement and the EEC-Morocco Agreement were substantially
different and, unlike the one with Turkey, the EEC-Morocco Agreement did not
provide for the possibility of Morocco acceding to the Community nor was it
aimed at securing freedom of movement for workers. Consequently, the Court
held that the United Kingdom was not precluded from refusing to extend
the applicant’s residence permit, even though this would have implied the
termination of his employment before expiry of the employment agreement.
The Court went further and pointed out that the situation would have been
different if the Member State had granted the Moroccan national “specific
rights in relation to employment which were more extensive than the rights of
residence”.
Example: In
Gattoussi,367 the Court was called to decide a similar case, but
under the prohibition of discrimination laid down in Article 64 (1) of the Euro-
Mediterranean Agreement Association between the EU and Tunisia. In this
case, however, the applicant had been explicitly granted an indefinite work
permit. In these circumstances, the Court concluded that Article 64 (1) of the
EU-Tunisia Association Agreement “may have effects on the right of a Tunisian
national to remain in the territory of a Member State in the case where that
person has been duly permitted by that Member State to work there for
a period extending beyond the period of validity of his permission to remain”.
In essence, the Court pointed out that in principle the EU-Tunisia Association
Agreement did not prohibit a Member State from curtailing the Tunisian
national’s right when he had previously been authorised to enter and work.
However, when the Tunisian national had been granted specific employment
rights that were more extensive than the rights of residence, the refusal to
extend his right of residence had to be justified on grounds of protection of
a legitimate national interest, such as public policy, public security or public
health.
367 ECJ, C-97/05 [2006] ECR I-11917
, Mohamed Gattoussi v. Stadt Rüsselsheim, 14 December 2006,
para. 39.
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Economic and social rights
Similarly, Article 80 of the Stabilisation and Association Agreement between
EU Member States and Albania368 establishes that “in relation to migration, the
Parties agree to the fair treatment of nationals of other countries who reside legally
on their territories and to promote an integration policy aiming at making their
rights and obligations comparable to those of their citizens”.
In a less extensive manner, Article 23 of the Partnership and Cooperation Agree-
ment with Russia369 regarding labour conditions establishes that “subject to the
laws, conditions and procedures applicable in each Member State, the Community
and its Member States shall ensure that the treatment accorded to Russian nation-
als, legally employed in the territory of a Member State shall be free from any dis-
crimination based on nationality, as regards working conditions, remuneration or
dismissal, as compared to its own nationals”.
Example: The
Simutenkov case370 concerned a Russian national employed as
a professional football player in a Spanish club in Spain, whose participation in
competitions was limited by the Spanish rules because of his nationality. The
ECJ interpreted the non-discrimination provision laid down in Article 23 when
assessing a rule drawn up by a Member State’s sports federation which
provides that, in competitions organised at national level, clubs may only
field a limited number of players from countries that are not parties to the
EEA Agreement. The Court held that the rule was not in compliance with the
purpose of Article 23 (1)).
8.2.7. Asylum seekers and refugees
Article 11 of the
Reception Conditions Directive (2003/9/EC) makes provision for
the possibility of Member States permitting
asylum seekers and those seeking
subsidiary protection to work, but does not make it mandatory.
Access to the la-
bour market, however, has to be granted if a decision at first instance has not been
taken within one year of the presentation of an asylum application and if this delay
368 Stabilisation and Association Agreement between the European Communities and their Member States,
of the one part, and the Republic of Albania, of the other part (entered into force on 1 April 2009),
OJ 2009 L107, p. 166.
369 Agreement on partnership and cooperation establishing a partnership between the European
Communities and their Member States, of one part, and the Russian Federation, of the other part
(entered into force on 1 December 1997), OJ 1997 L327, p. 3.
370 ECJ, C-265/03 [2005] I-02579,
Igor Simutenkov v. Ministerio de Educación y Cultura and Real Federación
Española de Fútbol, 12 April 2005, para. 41.
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Handbook on European law relating to asylum, borders and immigration
cannot be attributed to the applicant. Priority can be given, however, to EEA nation-
als and other legally residing third-country nationals.
Article 26 (1) and (3) of the
Qualification Directive (2011/95/EC) recognises the right
of
refugees and those granted subsidiary protection to take up employment and
to be self-employed. The same access that nationals have is to be granted to pro-
cedures for recognition of qualifications. In addition, Article 28 of the
Qualification Directive provides for access to measures to assess prior learning, in case documen-
tary evidence of previous qualification cannot be provided by the individual. These
provisions reflect Articles 17, 18, 19 and 22 (2) of the Geneva Convention on the
Status of Refugees. The directive also obliges the Member State to guarantee ac-
cess to vocational training under the same conditions as nationals. Until 22 Decem-
ber 2013, however, when the revised
Qualification Directive provisions will enter
into force, Member States can consider the current labour market when granting
beneficiaries of subsidiary protection with access to employment.
8.2.8. Migrants in an irregular situation
Access to many social rights depends on being lawfully present, or resident, in the
host state. The EU is committed to eliminating the arrival and presence of unau-
thorised economic migrants. The key measure is the
Employer Sanctions Directive (2009/52/EC): it prohibits the employment of irregular migrants from outside the
EU by punishing employers through fines, or even criminal sanctions in the most
serious of cases. All EU Member States, except Denmark, Ireland and the United
Kingdom, are bound by the directive. It is also intended to offer migrant workers in
an irregular situation a degree of protection from abusive employers.
Under the directive, before recruiting a third-country national, employers are re-
quired to check that they are authorised to stay, and to notify the relevant national
authority if they are not. Employers who can show that they have complied with
these obligations and have acted in good faith are not liable to sanctions. As many
migrants in an irregular situation work in private households, the directive also ap-
plies to private individuals as employers.
Employers who have not carried out such checks and are found to be employing
irregular migrants will be liable for financial penalties, including the costs of return-
ing irregularly staying third-country nationals to their home countries. They also
have to repay outstanding wages, taxes as well as social security contributions.
Employers are liable to criminal penalties in the most serious of cases, such as,
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Economic and social rights
repeated infringements, the illegal employment of children or the employment of
significant numbers of migrants in an irregular situation.
The directive protects migrants by ensuring that they get any outstanding remu-
neration from their employer, and by providing access to support from third par-
ties, such as trade unions or NGOs. The directive puts a particular emphasis on the
enforcement of the rules. See Section 2.4 on the issuance of residence permits to
victims of particularly exploitative working conditions who collaborate with the jus-
tice system.
8.3. Education
The right to education for children is protected under several international human
rights instruments and the committees overseeing the Convention on the Rights of
the Child, the International Covenant on Social and Economic Rights and the Inter-
national Convention on the Elimination of All Forms of Racial Discrimination. These
committees have consistently held that the non-discrimination requirements of
those instruments also apply to refugees, asylum seekers and to migrants in regular
as well as irregular situations.
Under the ECHR, Article 2 of Protocol 1 provides for the right to education, and
Article 14 and Protocol No. 12 prohibit discrimination on the ground of ‘national
origin’. Article 2 of Protocol No. 1 in principle guarantees the right to primary and
secondary education, whereas differences in treatment in respect of tertiary educa-
tion might be much easier to justify.
Example: The case of
Timishev v. Russia371 concerned Chechen migrants
who, though not technically foreigners, lacked the required local migration
registration to enable their children to attend school. The Court found that the
right for children to be educated was one of “the most fundamental values of
democratic societies making up the Council of Europe” and held that Russia had
violated Article 2 of Protocol No. 1.
371 ECtHR
, Timishev v. Russia, Nos. 55762/00 and 55974/00, 13 December 2005, para. 64.
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Handbook on European law relating to asylum, borders and immigration
Example: In
Ponomaryovi v. Bulgaria,372 the ECtHR found that a requirement
to pay secondary school fees that were predicated on the immigration status
and nationality of the applicants was not justified. The Court noted that the
applicants were not unlawfully arriving in the country and then laying claim
to the use of its public services, including free schooling. Even when the
applicants fell, somewhat inadvertently, into the situation of being aliens that
lack permanent residence permits, the authorities had no substantive objection
to their remaining in Bulgaria, and apparently never had serious intentions of
deporting them. Considerations relating to the need to stem or reverse the flow
of illegal immigration clearly did not apply to the applicants.
Example: In the case of
Karus v. Italy,373 the former European Commission of
Human Rights found that charging higher fees to foreign university students
did not violate their right to education as the differential treatment was
reasonably justified by the Italian government’s wish to have the positive
effects of tertiary education staying within the Italian economy.
Under the ESC, Article 17 governs the right to education and is subject to the provi-
sions of Articles 18 and 19 in relation to migrants. The ECSR has made the following
statement of interpretation relating to Article 17 (2):
“As regards the issue as to whether children unlawfully present in the State
Party are included in the personal scope of the Charter within the meaning
of its Appendix, the Committee refers to the reasoning it has applied in its
Decision on the Merits of 20 October 2009 of the Complaint No. 47/2008
Defence for Children International (DCI) v. the Netherlands (see, inter alia,
paragraphs 47 and 48) and holds that access to education is crucial for
every child’s life and development. The denial of access to education will
exacerbate the vulnerability of an unlawfully present child. Therefore,
children, whatever their residence status, come within the personal scope of
Article 17 § 2. Furthermore, the Committee considers that a child’s life would
be adversely affected by the denial of access to education. The Committee
therefore holds that States Parties are required, under Article 17 § 2 of the
Charter, to ensure that children unlawfully present in their territory have
effective access to education as any other child.”374
372 ECtHR
, Ponomaryovi v. Bulgaria, No. 5335/05, 21 June 2011, paras. 59-63.
373 European Commission of Human Rights,
Karus v. Italy (dec.), No. 29043/95, 20 May 1998.
374 ECSR, Conclusions 2011, General Introduction, January 2012.
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Economic and social rights
Under EU law, the EU Charter of Fundamental Rights provides in Article 14 that
every one has the right to education and the “possibility” of receiving free
compulsory education. Under secondary EU law, all third-country national children
in the EU, except those only present for a short period of time, are entitled to access
basic education. This also includes child migrants in an irregular situation whose
removal has been postponed.375 For other categories, such as family members of EEA
nationals, refugees or long-term residents, broader entitlements have been codified.
Under certain conditions, third-country national children of EEA nationals have the
right to remain for the continuation or completion of their education, including after
the EEA national died or moved on (Article 12 (3) of the
Free Movement Directive).
These children also have the right to be accompanied by the parent who has custo-
dy (Article 12 (3)).376 In addition, children of EEA workers who are or were employed
in a Member State other than their own benefit from the provision contained in
Article 10 of Regulation 492/2011377 (former Regulation 1612/68), which continues
to apply independently of the provisions of the
Free Movement Directive.378
Article 22 (1) of the Refugee Convention and the EU asylum
acquis provide for the
right to education of asylum-seeking children and for those granted refugee status
or subsidiary protection. 379
Third-country nationals recognised as long-term residents under the
Long-Term
Residents Directive (see Section 2.7) enjoy equal treatment with EU Member State
citizens as regards access to education and vocational training, and study grants, as
well as recognition of qualifications (Article 11). They also have the right to move to
other EU Member States for education and vocational training (Article 14).
375 Directive 2008/115/EC, OJ L 348/98, Art. 14 (1).
376 See Article 12 (3) of the
Free Movement Directive 2004/38/EC, OJ L 158/77, which builds upon ECJ case
law on Art. 12 of the Regulation 1612/68 (today Art. 10 of Regulation 492/2011/EU) and especially
on ECJ, Joined Cases C-389/87 and 390/87 [1989] ECR I-00723,
G. B. C. Echternach and A. Moritz v.
Minister van Onderwijs en Wetenschappen, 15 March 1989, and on ECJ, C-413/99 [2002] ECR I-07091,
Baumbast and R v. Secretary of State for the Home Department, 17 September 2002.
377 Regulation 492/2011/EU, OJ L 141/1, 5 April 2011.
378 ECJ, C-480/08, [2010] ECR I-01107
, Maria Teixeira v. London Borough of Lambeth and Secretary of State
for the Home Department.
379 For information on asylum seekers, see Directive 2003/9/EC on Reception Conditions, OJ L 31/18,
Art. 10; for information on refugees and subsidiary protection status holders
, see Qualification
Directive 2011/95/EU, OJ L 337/9, Art. 27.
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Handbook on European law relating to asylum, borders and immigration
8.4. Housing
The right to adequate housing is part of the right of everyone to an adequate stand-
ard of living laid down in Article 11 of the International Covenant on Economic, So-
cial and Cultural Rights.
Under the ECHR, there is no right to acquire a home, only a right to respect for an
existing one.380 Immigration controls that limit an individual’s access to his or her
own home have been the subject of several cases brought before the ECtHR.
Example: In the case of
Gillow v. the United Kingdom,381 the ECtHR found
a violation of Article 8 when a British couple who had worked many years
abroad were refused a residence permit that would enable them to return to
live in the home they owned in Guernsey and had built 20 years beforehand.
Although there is no right to a home as such, the ECtHR has considered the failure
of Member States to provide shelter when they are required to do so by law, and,
in extreme situations, the Court found the denial to be so severe as to constitute
a violation of Article 3 of the ECHR on the prohibition of inhuman and degrading
treatment.
Example: In
M.S.S. v. Belgium and Greece,382 the ECtHR found that Greece’s
failure to make adequate provision for asylum seekers in view of their
obligations under EU law, resulting in the applicant’s destitution, reached the
threshold required for there to be a violation of Article 3 of the ECHR.
The Court has been careful not to interfere with Member States’ right to impose
admission conditions, including the situation of where newly arrived migrants are
excluded from public housing assistance.
380 ECtHR
, Chapman v. the United Kingdom [GC], No. 27238/95, 18 January 2001.
381 ECtHR
, Gillow v. the United Kingdom, No. 9063/80, 24 November 1986, paras. 55-58.
382 ECtHR
, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011.
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Economic and social rights
Example: The case of
Bah v. the United Kingdom383 concerned the refusal to
consider a mother and her 14-year-old son as ‘in priority need’ of housing
because the son had only recently been admitted from abroad for family
reunion and was subject to an immigration condition that he should not have
recourse to public funds. The applicant alleged that the consequent denial of
access to priority-need housing had been discriminatory. The Court rejected the
application. It found nothing arbitrary in the denial of a claim of priority need
based solely on the presence of the applicant’s son, whose leave to enter the
United Kingdom had been expressly conditional upon having no recourse to
public funds. By bringing her son into the United Kingdom while fully aware of
his entrance conditions, the applicant accepted this condition and effectively
agreed not to have recourse to public funds to support him. The legislation at
issue in this case pursued a legitimate aim, namely fairly allocating a scarce
resource between different categories of claimants. It is important to note that
the applicants in the
Bah case were not left destitute and alternative housing
was available to them.
It should be noted that in certain exceptional cases, the ECtHR has ordered interim
measures under Rule 39 to ensure that asylum-seeking families are provided with
shelter while their claims before the ECtHR were pending (see also Section 2.4).384
Under the ESC, Article 19 (4) (c) provides that states must ensure adequate ac-
commodation to migrant workers, but this right is restricted to those who move
between states that are party to the ESC.
The right to housing (Article 31 of the ESC) is closely linked to a series of additional
ESC (revised) rights: Article 11 on the right to health; Article 13 on the right to so-
cial and medical assistance; Article 16 on the right to appropriate social, legal and
economic protection for the family; Article 17 on the right of children and young
persons to social, legal and economic protection; and Article 30 on the right to pro-
tection against poverty and social exclusion which can be considered alone or be
read in conjunction with Article E on non-discrimination.
383 ECtHR
, Bah v. the United Kingdom, No. 56328/07, 27 September 2011.
384 ECtHR
, Afif v. the Netherlands (dec.), No. 60915/09, 24 May 2011; ECtHR,
Abdilahi Abdulwahidi v. the
Netherlands, No. 21741/07, still pending.
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Handbook on European law relating to asylum, borders and immigration
Example: In
COHRE v. Croatia, the ECSR stressed that “States Parties must
be particularly mindful of the impact their choices will have for groups with
heightened vulnerabilities”.385
Example: In
COHRE v. France, the ECSR found that the evictions of Roma from
their dwellings and their expulsions from France constituted a breach of
Article E when read in conjunction with Article 19 (8).386 Similarly, in
COHRE
v. Italy, the ECSR found Italy’s treatment of the Roma in violation of Article E in
conjunction with other articles of the ESC.387
Although the ESC Appendix to the ESC limits its application to lawfully resident na-
tionals of State Parties, the ECSR has also applied specific provisions of the revised
ESC to children in an irregular situation, stressing that the ESC has to be interpreted
in the light of international human rights law.
Example: In
Defence for Children International (DCI) v. the Netherlands,388 it
was alleged that Dutch legislation deprived children illegally residing in the
Netherlands of the right to housing and, thus, other ESC rights. The ECSR
held that the ESC could not be interpreted in a vacuum. The ESC should, to
the furthest extent possible, be interpreted in harmony with other rules of
international law of which it formed part, including in this case those relating to
the provision of adequate shelter to any person in need, regardless of whether
he or she is legally in the member state’s territory. Under Article 31 (2),
member states party to the ESC must take measures to prevent homelessness.
This requires a member state to provide shelter as long as the children are in
its jurisdiction, whatever their residence status. In addition, evicting unlawfully
present persons from shelter should be banned as it would place the persons
concerned, particularly children, in a situation of extreme helplessness, which
is contrary to respect for human dignity. The ECSR also found a violation of
Article 17 (1) (c), which protects separated children.
385 ECSR
, COHRE v. Croatia, Complaint No. 52/2008, merits, 22 June 2010.
386 ECSR
, COHRE v. France, Complaint No. 63/2010, merits, 28 June 2011.
387 ECSR
, COHRE v. Italy, Complaint No. 58/2009, merits, 25 June 2010.
388 ECSR,
Defence for Children International v. the Netherlands, Complaint
No. 47/2008,
merits, 20 October 2009.
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Economic and social rights
Under EU law, Article 1 of the EU Charter of Fundamental Rights
provides for the
right to dignity and Article 34 provides for the right to social assistance with regard
to housing. Relevant provisions concerning housing can also be found in secondary
EU law on third-country national family members of EEA and Swiss nationals, long-
term residents, persons in need of international protection, and victims of traffick-
ing. For other categories of third-country nationals, EU law tries to ensure that they
will not constitute a burden for Member States’ social assistance systems. Therefore,
before researchers (
Scientific Research Directive, Article 6 (2) (b)) and students
(Stu-
dents Directive, Article 7 (1) (b)) are allowed to enter the EU, they need to provide
proof that their housing needs are covered. Member States can establish similar re-
quirements for family members of third-country national sponsors (Article 7 (1) (a)
of the
Family Reunification Directive).
Example: In
Kamberaj,389 the CJEU found that a national law treating third-
country nationals differently from EU citizens with regard to housing benefits
violated Article 11 (1) (d) of the
Long-Term Residents Directive. Specifically,
the Court maintained that under Article 11 (4), Member States can limit social
assistance and protection, noting though that the list of minimum core benefits
contained in Recital 13 is not exhaustive. The CJEU extended the core benefits
to include housing benefits. In doing so, the Court recalled Article 34 of the EU
Charter of Fundamental Rights, which, in order to combat social exclusion and
poverty, “recognises and respects the right to social and housing assistance so
as to ensure a decent existence for all those who lack sufficient resources”.
Under Article 24 of the
Free Movement Directive, third-country national family
members of EEA nationals
must have the same access to social and tax advantages
as nationals. Family members of EEA and Swiss nationals cannot be subjected to
restrictions on their right to access housing, including socially supported housing.390
This does not apply to third-country national family members of EU citizens who
have not exercised free movement rights, as their situation is not regulated by EU
law; for them, rules established by domestic law apply. Economically inactive EEA
nationals and their family members, who must show that they are economically
389 CJEU, C-571/10, [2012] ECR 00000,
Servet Kamberaj v. Istituto per l’Edilizia sociale della Provincia
autonoma di Bolzano (IPES) and Others, 24 April 2012.
390 Agreement between the European Community and its Member States, on the one part, and the Swiss
Confederation, on the other, on the free movement of persons, signed in Luxembourg on 21 June 1999,
entered into force on 1 June 2002, OJ 2002 L 114/6.
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Handbook on European law relating to asylum, borders and immigration
self-sufficient, may not be eligible for financial assistance for their housing needs
(Article 7 (1) (b) of the
Free Movement Directive).
Long-term residents are entitled to receive equal treatment as nationals with regard
to procedures for obtaining housing (Article 11 (1) (f) of the
Long-Term Residents Directive). Victims of trafficking are entitled to special assistance and support meas-
ures that include “at least standards of living capable of ensuring victims’ subsist-
ence through measures such as the provision of appropriate and safe accommoda-
tion” (Article 11 (5) of th
e Trafficking Directive).
Under the
Reception Conditions Directive, asylum seekers have a right to be sup-
ported. Under Articles 13 and 14 of the directive, Member States are required to
provide asylum seekers with “material reception conditions to ensure a standard of
living adequate for the health of applicants and capable of ensuring their subsist-
ence”. This can be in cash or in kind by the provision of appropriate housing.
Example: In
Cimade,391 the CJEU clarified how to apply the
Reception Conditions
Directive in the case of transfer requests under the
Dublin II Regulation. The
CJEU held that a Member State seeking to transfer an asylum seeker under
the
Dublin II Regulation is responsible, including financially, for ensuring that
asylum seekers have the full benefit of the
Reception Conditions Directive until
the applicant is physically transferred. The directive aims to ensure full respect
for human dignity and to promote the application of Articles 1 and 18 of the EU
Charter of Fundamental Rights. Therefore, minimum reception conditions must
also be granted to asylum seekers awaiting a
Dublin II Regulation decision.
Under Article 32 of the
Qualification Directive (for Ireland and the United Kingdom,
Article 31 of the 2003 version of the same directive), Member States are required
to ensure that beneficiaries of refugee or subsidiary protection status have access
to accommodation under conditions equivalent to those imposed on other third-
country nationals legally resident in the Member State’s territory.
391 CJEU, C-179/11 [2012],
Cimade, Groupe d’information et de soutien des immigrés (GISTI) v. Ministre
de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration, 27 September 2012;
CJEU, Joined Cases C-411/10 and C-493/10,
N.S. v. Secretary of State for the Home Department and
M.E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law
Reform, 21 December 2011.
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Economic and social rights
8.5. Healthcare
Under the ECHR, there is no express right to healthcare, although this is arguably
an aspect of ‘moral and physical integrity’ which may fall within the scope of
Article 8 guaranteeing the right to respect for private life.392
The ECHR also does not
guarantee the right to any particular standard of medical service or the right to ac-
cess to medical treatment.393 Under certain circumstances, a Member State’s respon-
sibility under the ECHR, however, may be engaged where it is shown that Member
State’s authorities put an individual’s life at risk through acts or omissions that deny
the individual healthcare that has otherwise been made available to the general
population.394 In relation to migration, healthcare issues have primarily arisen un-
der the ECHR in the context of healthcare needs being invoked as a shield against
expulsion. In extreme cases, this may engage Article 3 of the ECHR (see Chapter 3).
Under the ESC,
Article 13 of the ESC provides for the right to medical assistance.395
The ECSR considers that this right is applicable to migrants in an irregular situation.
Example: In
International Federation of Human Rights Leagues (FIDH) v.
France,396 the FIDH claimed that France had violated the right to medical
assistance (Article 13 of the Revised ESC) by ending the medical and hospital
treatment fee exemption for migrants in an irregular situation and with very
low incomes. Further, the complainant alleged that the right of children
to protection (Article 17) was contravened by a 2002 legislative reform that
restricted access to medical services for migrant children in an irregular
situation. ESC rights can, in principle, only extend to foreigners who are
nationals of other member states party to the ESC and lawfully resident or
working regularly within the State. The ECSR emphasised, however, that the
ESC must be interpreted in a purposive manner consistent with the principles
of individual human dignity, and that any restrictions should consequently
be narrowly read. It held that any legislation or practice that denies foreign
392 ECtHR
, Bensaid v. the United Kingdom, No. 44599/98, 6 February 2001.
393 ECtHR
, Wasilewski v. Poland (dec.), No. 32734/96, 20 April 1999.
394 ECtHR
, Powell v. the United Kingdom (dec.), No. 45305/99, 4 May 2000.
395 Also see the European Convention on Social and Medical Assistance which similarly provides for mutual
provision of social and medical assistance to nationals of states which are parties to it on the territory
of other states party. This Council of Europe Convention has only 18 parties, all of whom except Turkey
are also part of the EU, open for signature on 11 December 1953, entered into force 1 July 1954,
ETS No. 014.
396 ECSR,
International Federation of Human Rights Leagues v. France, Complaint No. 14/2003,
merits, 8 September 2004.
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Handbook on European law relating to asylum, borders and immigration
nationals entitlement to medical assistance while they are within the territory
of a State Party, even if they are there illegally, is contrary to the ESC, although
not all ESC rights may be extended to migrants in an irregular situation. By
a majority of 9 to 4, the ECSR found no violation of Article 13 on the right to
medical assistance, since adult migrants in an irregular situation could access
some forms of medical assistance after three months of residence, while all
foreign nationals could obtain treatment for ‘emergencies and life threatening
conditions’ at any time. Although the affected children had similar access to
healthcare as adults, the ECSR found a violation of Article 17 on the right of
children to protection as the article was more expansive than Article 13 on the
right to medical assistance. This decision corresponds to the approach later
taken with respect to children in the
Defence of Children International case
(see Section 8.4).
Under EU law, the EU Charter of Fundamental Rights does not include a right
to health, but recognises related rights such as the protection of human dignity
(Article 1) and the right to physical integrity (Article 3). The Charter also includes
the right to ‘healthcare’ under Article 35, which states that “[e]veryone has the right
of access to preventive healthcare and the right to benefit from medical treatment
under the conditions established by national laws and practices”. The Charter’s
application is limited to those matters that fall within the scope of EU law. The Charter
does not make any distinction on the ground of nationality; it makes, however, the
exercise of the right to healthcare subject to national laws and practices.
Secondary EU law regulates access to healthcare for a variety of categories of third-
country nationals and requires some of them to have sickness insurance before they
are granted a particular status or admission into the Member State territory. The
most common third-country national categories will be briefly mentioned.
Whatever their nationality, working or self-employed family members of EEA and
Swiss nationals who exercised free movement rights are entitled to equal treat-
ment with nationals (Article 24 of the
Free Movement Directive for EU nationals).397
Those who wish to reside in another Member State on the basis that they are
397 Agreement on the European Economic Area, 2 May 1992, Part III, Free Movement of Persons, Services
and Capital; Agreement between the European Community and its Member States, on the one part,
and the Swiss Confederation, on the other, on the free movement of persons, signed in Luxembourg
on 21 June 1999, entered into force on 1 June 2002, OJ 2002 L 114/6.
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Economic and social rights
economically self-sufficient must show that they have health insurance to cover all
risks for both themselves and their family members (Article 7 (1) (b)).
Whether an EEA national or a third-country national, any individual who is affili-
ated with a national health scheme in their EEA state of residence is entitled to the
necessary treatment398 when they visit other EEA Member States and Switzerland.399
Travelling to another Member State for the purpose of receiving publicly provided
medical treatment is subject to complex rules.400
Under the
Family Reunification Directive, the sponsor may be required to prove that
he or she has, in particular, a “sickness insurance in respect of all risks normally
covered for its own nationals in the Member State concerned for himself/herself
and the members of his/her family” as well as “stable and regular resources which
are sufficient to maintain himself/herself and the members of his/her family,
without recourse to the social assistance system of the Member State concerned”
(Article 7 (1) (b) (c)).
Similarly, before being granted long-term resident status, third-country nationals
and their family members are required to provide evidence of sickness insurance
that covers all risks that are normally covered by the host Member State for its own
nationals (Article 5 (1) (b) of the
Long-Term Residents Directive). They also need
to show that they have stable and regular resources that are sufficient to maintain
himself or herself and the members of his or her family without recourse to the
Member State’s social assistance system (Article 5 (1) (a)). Persons who obtained
long-term resident status are entitled to equal treatment with nationals of the host
Member State as regards “social security, social assistance and social protection as
defined by national law” (Article 11 (1) (d)). Recital 13 of the directive states that
with regard to social assistance, “the possibility of limiting the benefits for long-
term residents to core benefits is to be understood in the sense that this notion
covers at least minimum income support, assistance in case of illness, pregnancy,
398
Regulation 883/2004/EC, 29 April 2004, Art. 19 (1); CJEU, C-211/08 [2010] ECR I-05267
, European
Commission v. Kingdom of Spain, 15 June 2010, paras. 58 and 61.
399 Decision 2012/195/EU of the Joint Committee established under the Agreement between the European
Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the
free movement of persons of 31 March 2012, replacing Annex II to that Agreement on the coordination
of social security schemes.
400 See Art. 22 (1) (c) of Regulation 1408/71, at issue in both ECJ, C-368/98, [2001] ECR I-05363
, Abdon
Vanbraekel and Others v. Alliance nationale des mutualités chrétiennes (ANMC), 12 July 2011 and ECJ,
C-372/04 [2010] ECR I-04325,
The Queen, on the application of Yvonne Watts v. Bedford Primary Care
Trust and Secretary of State for Health, 16 May 2006.
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Handbook on European law relating to asylum, borders and immigration
parental assistance and long-term care. The modalities for granting such benefits
should be determined by national law”.
Under Articles 13 and 15 of the
Reception Conditions Directive, asylum seekers are
entitled to emergency care and essential treatment for illness, as well as necessary
medical or other assistance for those who have special needs. Th
e Return Directive (2008/115/EC) similarly states that “[p]articular attention shall be paid to the situa-
tion of vulnerable persons. Emergency healthcare and essential treatment of illness
shall be provided to those whose removal has been suspended or who have been
given time to depart voluntarily”.
Recognised refugees and those with subsidiary protection are entitled to equal
access to healthcare as the Member State’s own nationals under Article 30 of the
Qualification Directive. Until December 2013, this can be limited to “core benefits”
for subsidiary protection status holders. There are also special provisions for those
with special needs. Assistance and support measures to be given to victims of traf-
ficking encompass necessary medical treatment, including psychological assistance,
counselling and information (Article 11 (5) of th
e Trafficking Directive).
8.6. Social security and social assistance
Social security and social assistance refer to benefits that are either based on past
contributions into a national social security system, such as retirement pensions, or
that are provided by the state to persons in need such as persons with disabilities.
They include a wide range of benefits, which are usually financial.
Under the ECHR, there is no express right to social security or social assistance.
Example: In the case of
Wasilewski v. Poland,401 the Court noted that “[i]n so
far as the applicant’s complaints relate to his difficult financial situation, the
Court recalls that neither Article 2 nor any other provision of the Convention
can be interpreted as conferring on an individual a right to enjoy any given
standard of living, or a right to obtain financial assistance from the State”.
401 ECtHR
, Wasilewski v. Poland (dec.), No. 32734/96, 20 April 1999.
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Economic and social rights
In certain circumstances, an issue of discrimination may arise in the area of social
security and social assistance, regardless of whether the individual in question has
financially contributed to the scheme in question. The ECtHR has been critical of
states that refused benefits to lawful residents on the discriminatory
basis that they
did not meet a nationality requirement.402
Examples: The case of
Gaygusuz v. Austria403 concerned the denial of
unemployment benefits to a Turkish citizen on the basis that he did not have
Austrian nationality. The case of
Koua Poirrez v. France404 concerned the denial
of disability benefits to a lawfully resident migrant because he was neither
French nor a national of a country with a reciprocal agreement with France. In
both cases, the ECtHR found that the applicants had been discriminated against,
which was in violation of Article 14 of the ECHR read in conjunction with
Article 1 of Protocol No. 1 on the right to peaceful enjoyment of possessions.
Example: The case of
Andrejeva v. Latvia405 related to contribution-based
benefits. The applicant had worked most of her life in the territory of Latvia
when it was part of the Soviet Union. She was denied a part of her pension
because she had been working outside Latvia and was not a Latvian citizen.
The ECtHR could not accept the government’s argument that it would
be sufficient for the applicant to become a naturalised Latvian citizen in
order to receive the full amount of the pension claimed. The prohibition of
discrimination enshrined in Article 14 of the ECHR was only meaningful if,
in each particular case, the applicant’s personal situation is taken as is and
without modification when considered in relation to the criteria listed in the
provision. To proceed otherwise by dismissing the victim’s claims on the ground
that he or she could have avoided the discrimination by altering one of the
factors in question – for example, by acquiring a nationality – would render
Article 14 devoid of substance. The ECtHR found a violation of Article 14 of the
Convention taken in conjunction with Article 1 of Protocol No. 1.
402 ECtHR
, Luczak v. Poland, No. 77782/01, 27 November 2007; ECtHR,
Fawsie v. Greece,
No. 40080/07, 28 October 2010.
403 ECtHR
, Gaygusuz v. Austria, No. 17371/90, 16 September 1996, paras. 46-50.
404 ECtHR
, Koua Poirrez v. France, No. 40892/98, 30 September 2003, para. 41.
405 ECtHR
, Andrejeva v. Latvia [GC], No. 55707/00, 18 February 2009, para. 91.
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Handbook on European law relating to asylum, borders and immigration
In these examples, the applicants were, in all other respects, similar to a state’s
own national; none of the applicants were in a precarious immigration situation or
subject to restrictions on having recourse to public funds.
Example: The case of
Weller v. Hungary406 concerned a Hungarian father
and a Romanian mother. At the time of application, which was prior to
Romania’s accession to the EU, the mother had a residence permit, but not
a settlement permit in Hungary. Under Hungarian law, only mothers with
Hungarian citizenship or a settlement permit could apply for the maternity
benefit. The applicant complained that men with foreign spouses were treated
less favourably in the enjoyment of the benefit than those with Hungarian
wives. The Court held that there had been a violation of Article 8 of the ECHR
taken together with Article 14.
Under the ESC, there is a right to social security (Article 12), a right to social and medi-
cal assistance (Article 13) and a right to benefit from social welfare services (Article 14).
In addition, there are specific provisions for persons with disabilities (Article 15), chil-
dren and youth (Article 17) and elderly persons (Article 23). Article 30 contains the
right to protection against poverty and social exclusion. As far as social assistance is
concerned, Article 13 of the ESC is applicable to migrants in an irregular situation.
Under EU law, two situations regarding third-country nationals have to be distin-
guished. First, there is a system of coordination of benefits among Member States
for third-country nationals moving within the EU. Second, specific categories of
third-country nationals are entitled under secondary EU law to certain benefits re-
gardless of whether they have moved within the EU.
a) Coordination of benefits within the EU
Third-country national family members of EEA nationals who have moved to
an EU Member State are entitled under Article 24 of the
Free Movement Directive (and for non-EU citizens under the EU-EEA agreement) to the same social and tax
advantages as the host Member State’s own nationals. According to Article 14 (1) of
the same directive, however, those who are exercising free movement rights with-
out working must not become an unreasonable burden on the host Member State’s
social assistance system. A complex body of law has been built up over the years
406 ECtHR
, Weller v. Hungary, No. 44399/05, 31 March 2009, paras. 36-39.
200
Economic and social rights
to coordinate social security and social assistance for persons exercising free move-
ment rights. This has been codified in
Regulation 883/2004/EC (as amended)407
with the basic principle that the EU-wide system is a system of coordination, not
harmonisation.408 It is intended to minimise the negative effects of migrating be-
tween Member States by simplifying administrative procedures and ensuring equal
treatment between those who move between Member States and nationals of
a Member State. Some entitlements are exportable, while others are not. Regula-
tion 987/09 (amended by
Regulation 465/2012/EU) sets out the procedures needed
to implement
Regulation 883/2004/EC.
Employed third-country nationals who move between EU Member States as well as their family members and their heirs are entitled to the benefit of the
cross-border legislation on accumulation and coordination of social security benefits
(Regulations 859/2003 and 1231/2010). This is subject to the condition that the
employed third-country nationals are legally resident in a Member State’s territory
and have links beyond those to the third country and a single Member State. These
regulations do not cover employed third-country nationals that only have links to
a third country and a single Member State.
b) Entitlements for certain categories of third-country nationals
Asylum seekers have no specific right to access social assistance under the
Recep-
tion Conditions Directive. Article 13, however, sets out general rules on the avail-
ability of material reception conditions and Article 13 (5) expressly states that these
may be provided in kind, or in the form of financial allowances or vouchers, or in
a combination of these provisions.
Example: On 18 July 2012, the German Federal Constitutional Court
(
Bundesverfassungsgericht) ruled that Germany must increase the aid given
to asylum seekers, which it had not increased for 19 years and which did not
cover the minimum required to ensure a dignified existence under Article 1 of
the German Constitution.409
407 The regulation has been amended by
Regulation (EC) No. 988/2009, Regulation 1231/2010/EU and
most recently in 2012 b
y Regulation 465/2012/EU.
408 ECJ, C-21/87 [1988] ECR I-03715
, Borowitz v. Bundesversicherungsanstalt für Angestellte, 5 July 1988,
para. 23; ECJ, C-331/06 [2008] ECR I-01957,
Chuck v. Raad van Bestuur van de Sociale
Verzekeringsbank, 3 April 2008, para. 27.
409
Germany, Bundesverfassungsgericht, No. 56/2012, 18 July 2012.
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Handbook on European law relating to asylum, borders and immigration
Under Article 29 of the revise
d Qualification Directive, a Member State is to en-
sure that refugees and beneficiaries of subsidiary protection receive ‘necessary so-
cial assistance’ equal to that provided to a national in the host Member State. For
subsidiary protection status holders, however, this can be limited to ‘core benefits’.
Article 23 (2) extends benefits to the family members of beneficiaries of subsidiary
protection. Member States may continue to have some restrictions for beneficiar-
ies of subsidiary protection until December 2013. According to Article 11 (7) of the
Trafficking Directive, Member States are required to attend to victims of trafficking
with special needs, and specific requirements are set for child victims of trafficking
(Articles 13).
Under the
Long-Term Residents Directive, those who have acquired long-term
resident status are entitled to equal treatment with the host country nationals
with regard to social security, social assistance and social protection under Arti-
cle 11 (1) (d). Social assistance and social protection entitlements, however, may be
limited to core benefits.
Th
e Family Reunification Directive does not provide access to social assistance to
family members of third-country national sponsors. The sponsors have to show that
they have stable and regular resources that are sufficient to maintain themselves as
well as the family member without recourse to the Member State’s social assistance
system (Article 7 (1) (c) of the directive).
Key points
General points under EU law and the ESC
•
An acknowledged right to enter or remain is normally necessary in order to access
economic and social rights (see Introduction to Chapter 8).
•
Core components of social rights are to be provided to any individual present in the
territory (see references to migrants in an irregular situation in Sections 8.2-8.6).
•
The closer the migrant’s situation is to that of a state’s own citizens, the greater the
justification that will be required if discriminating on the ground of nationality (see
Introduction to Chapter 8).
•
Many rights under the EU Charter of Fundamental Rights are restricted solely to
citizens and those lawfully resident in an EU Member State (see Section 8.1).
•
The ESC enshrines a body of economic and social rights; the enjoyment of these
rights is, in principle, restricted to nationals of a state party to the ESC when in
202
Economic and social rights
the territory of another state party to the ESC. The ECSR has, however, made some
exceptions when it concerned housing for children (see Section 8.4) and healthcare
(see Section 8.5).
Economic rights under EU law
•
Access to the labour market can be restricted; however, from the moment a person
is working, whether lawfully or not, core labour rights have to be respected (see
Section 8.2).
•
The degree to which third-country nationals have access to the labour market
differs according to which category they belong (see Section 8.1).
•
Qualifying family members of EEA nationals have the same right to access the
labour market as citizens of an EU Member State (see Section 8.2.1).
•
Turkish citizens benefit from the standstill clause of Article 41 of the Additional
Protocol to the Ankara Agreement, which prevents states from imposing new
burdens on them (see Section 8.2.4).
•
Asylum seekers have to be granted access to the labour market at the latest one
year after lodging the application for asylum (see Section 8.2.7).
•
The
Employer Sanctions Directive penalises those who employ migrants in an
irregular situation and also provides the right to claim withheld pay and some other
protection for migrants in abusive situations (see Section 8.2.8).
Education (see Section 8.3)
•
Pursuant to Article 2 of Protocol No. 1 to the ECHR, no one must be denied the right
to education. Member states, however, enjoy a wider margin of appreciation in
imposing certain limitations in respect of higher levels of education.
•
All third-country national children staying in the EU, including migrants in an
irregular situation whose removal has been postponed, are entitled under
secondary EU law to access basic education.
Housing (see Section 8.4)
•
EU law deals with housing through the EU Charter of Fundamental Rights; it also
includes specific provisions for third-country national family members of EEA
nationals, long-term residents, persons in need of international protection and
victims of trafficking in secondary EU law.
•
EU Member States are required to provide asylum seekers with a standard of living
adequate for the health of applicants and capable of ensuring their subsistence.
•
A failure by the authorities to respect someone’s home may raise an issue under
Article 8 of the ECHR. In extreme situations, a failure to provide shelter may raise
an issue under Article 3 of the ECHR.
•
The ESC grants a right to housing, which acts as a gateway to a series of additional
rights.
203
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Handbook on European law relating to asylum, borders and immigration
Healthcare (see Section 8.5)
•
Persons affiliated with a national health scheme in their EEA state of residence can
benefit from local healthcare provisions when they visit other EEA Member States
and Switzerland.
•
Under EU law, refugees are entitled to equal access to healthcare as nationals,
whereas asylum seekers and migrants in an irregular situation whose removal has
been postponed are entitled to emergency care and essential treatment.
•
The ECHR contains no specific provision concerning healthcare, but the ECtHR may
examine complaints of this sort under Articles 2, 3 or 8 of the ECHR.
•
The ESC guarantees medical assistance to migrants in an irregular situation.
Social security and social assistance (see Section 8.6)
•
Under EU law, for those third-country nationals moving between Member States
under the free movement provisions, a complex body of law has been built up over
the years regarding entitlement to social security and social assistance.
•
Under the ECHR, the refusal of social assistance or other benefits to a foreigner may
raise an issue of discrimination regardless of whether he or she contributed to the
scheme from which the allowance will be paid out.
•
The ESC requires that social assistance be guaranteed to persons in need, including
those in an irregular situation.
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
204
9
Persons with
specific needs
EU
Issues covered
CoE
EU Charter of Fundamental Rights,
Unaccompanied ESC, Article 17 (right of children to
Article 24 (the rights of the child)
minors
social, legal and economic protection)
ECtHR,
Rahimi v. Greece, 2011
(unaccompanied minor asylum seeker
detained in adult detention centre)
Dublin II Regulation, Article 6
Reception and
Reception Conditions Directive
treatment
(2003/9/EC), Article 19
Qualification Directive
(2004/83/EC), Article 31
Return Directive
(2008/115/EC), Article 10
Asylum Procedures Directive
Age assessment
Convention on Action against Trafficking
(2005/85/EC), Article 17
in Human Beings, Article 10 (3)
Trafficking Directive (2011/36/EU)
Victims of
ECHR, Article 4 (prohibition of
trafficking
slavery and forced labour)
ECtHR,
Rantsev v. Cyprus, 2010
(authorities obliged to carry out
investigation of their own motion)
Convention on Action against
Trafficking in Human Beings
Convention on the Rights of Persons
Persons with
with Disabilities (ratified by the EU)
disabilities
Reception Conditions Directive
(2003/9/EC), Article 17
Asylum Procedures Directive
(2005/85/EC), Article 12
Reception Conditions Directive
Victims of torture ECtHR,
Opuz v. Turkey, 2009
(2003/9/EC), Article 20
and other serious (domestic violence)
Asylum Procedures Directive
forms of violence
(2005/85/EC), Articles 12 and 14
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Handbook on European law relating to asylum, borders and immigration
Introduction
This chapter will look at certain groups of individuals who could be classified as
especially vulnerable and requiring specific attention. In addition to what has been
generally said in previous chapters, both EU and ECHR law may afford extra protec-
tion to persons with specific needs.
In EU law, vulnerable persons are defined in Article 17 of the
Reception Conditions
Directive (2003/9/EC) and Article 3 (9) of th
e Return Directive (2008/115/EC). Both
definitions include “minors, unaccompanied minors, persons with disabilities, elder-
ly people, pregnant women, single parents with minor children and persons who
have been subjected to torture, rape or other serious forms of psychological, physi-
cal or sexual violence”.
9.1. Unaccompanied minors
The term ‘unaccompanied minors’ is used to describe individuals under the age
of 18 who enter European territory without an adult responsible for them in the re-
ceiving state. There are key provisions of EU legislation on asylum and immigration
that address their situation, which will be reviewed in this section.
The ECHR does not expressly contain provisions in relation to unaccompanied mi-
nors, but their treatment may be considered under various provisions, such as Arti-
cle 5 on the right to liberty and security, Article 8 on the right to respect for private
and family life or Article 2 of Protocol No. 1 on the right to education. The ECtHR has
held that states have a responsibility to look after unaccompanied minors and not
to abandon them when releasing them from detention.410
Any decision concerning a child must be based on respect for the rights of the child
as set out in the UN Convention on the Rights of the Child (CRC), which has been
ratified by all states except Somalia and the United States of America. The CRC lays
out children’s human rights that are to be applied regardless of immigration sta-
tus.411 The principle of ‘the best interests of the child’ is of fundamental importance
and public authorities must make this a primary consideration when taking actions
related to children. Unlike the EU Charter of Fundamental Rights, this principle is not
410 ECtHR,
Rahimi v. Greece, No. 8687/08, 5 April 2011.
411 The UN Committee on the Rights of the Child has provided additional guidance for the protection, care
and proper treatment of unaccompanied children in its General Comment No. 6 (2005) available at
www2.ohchr.org/english/bodies/crc/comments.htm.
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Persons with specific needs
explicitly stated in the ECHR, but it is regularly expressed in its case law. The princi-
ple also underpins specific provisions of EU legislation in relation to unaccompanied
minors.
The ESC refers to separated children in Article 17 (1) (c). The ECSR – like the ECtHR –
has highlighted that states interested in stopping attempts to circumvent immigra-
tion rules must not deprive foreign minors, especially if unaccompanied, of the
protection their status warrants. The protection of fundamental rights and the con-
straints imposed by a state’s immigration policy must therefore be reconciled.412
9.1.1. Reception and treatment
Under EU law, the protection that will be discussed in this section only becomes
applicable once the unaccompanied minor applies for asylum. Before considering
their treatment during the application process, it is important to be aware of which
state is responsible for processing their asylum application. The
Dublin II Regulation
(Council Regulation (EC) No. 343/2003) states that where the applicant is a sepa-
rated child, the Member State responsible for examining the application is the state
where a member of his or her family is legally present, if that is in the child’s best
interests. In the absence of a family member, the Member State responsible is the
state where the child has lodged his or her application for asylum (Article 6). There
is currently no guidance, however, for determining which Member State is respon-
sible for examining an asylum application of an unaccompanied minor who has
lodged asylum claims in more than one Member State. The issue was the subject of
a reference for a preliminary ruling and is now pending before the CJEU.413
Unaccompanied minors seeking asylum have to be provided with a representative
as soon as they have applied for asylum (Article 19 of the
Reception Conditions Di-
rective). The legislation does not, however, provide for the appointment of a repre-
sentative from the moment an unaccompanied minor is detected by the authorities.
Further, there is no guidance on the role of the representative. Some EU Member
States have established a comprehensive guardianship role in relation to unac-
companied minors; in this case, the guardian has the legal status to ensure respect
412 ECSR,
Defence for Children International v. the Netherlands, Complaint
No. 47/2008,
merits, 20 October 2009. The Committee held,
inter alia, that unaccompanied minors enjoy a right to
shelter under Art. 31 (2) of the ESC.
413 CJEU, C-648/11,
MA, BT, DA v. Secretary of State for the Home Department, reference for a preliminary
ruling from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom) lodged
on 19 December 2011.
207
Handbook on European law relating to asylum, borders and immigration
for the unaccompanied child’s best interests, not only during the asylum process,
including interviews and age assessment, but also in other areas such as accommo-
dation, education and health matters. Other countries simply appoint a legal repre-
sentative to the child to advise on the asylum process, but who has no involvement
with other matters.
The
Reception Conditions Directive (Article 19) provides guidance on the type of
accommodation to be provided to unaccompanied minors, such as with adult rela-
tives, with a foster-family, in special facilities equipped or suitable for their needs.
Detention centres are not listed as an option for unaccompanied minors. The direc-
tive also notes that applicants aged 16 and over, but under the age of 18 and there-
fore still minors, may be placed in accommodation centres for adult asylum seekers.
The
Reception Conditions Directive further specifies that as far as possible siblings
must be kept together, taking into account the best interests of the minor con-
cerned and, in particular, his or her age and degree of maturity. Residence changes
of unaccompanied minors must be kept to a minimum. Furthermore, the directive
stipulates that Member States must try to trace the family members of unaccompa-
nied minors as soon as possible with due regard for their safety. Finally, it ensures
that individuals working with unaccompanied minors must receive or have com-
pleted the appropriate training.
Th
e Dublin II Regulation (see Section 4.2) also contains procedural safeguards in respect
of certain vulnerable individuals. A Member State may be requested by a responsible
state to examine an application in order to maintain family unity or where there are
health concerns (Article 15, ‘humanitarian clause’). Special provision is made in respect
of unaccompanied minors under Article 6. The proposed amendments to the
Dublin II Regulation place greater focus on the safety of vulnerable groups.
The revise
d Qualification Directive (2004/83/EC) includes specific provisions for
unaccompanied minors who are granted refugee or subsidiary protection status.
EU Member States are required to ensure representation of the unaccompanied
minor and that regular assessments are carried out by the appropriate authorities.
The appointed representative can be a legal guardian or, where necessary,
a representative of an organisation responsible for the care and well-being of
minors, or any other appropriate representative (Article 31).
Article 31 of the
Qualification Directive further requires Member States to ensure
that unaccompanied minors granted asylum are placed with adult relatives, a foster
208
Persons with specific needs
family, in reception centres with special provisions for minors, or in other suitable
accommodation. The child’s views on the type of accommodation must be taken
into account in accordance with the minor’s age and maturity. The directive ech-
oes th
e Reception Conditions Directive provisions regarding placement with siblings,
family tracing and training of adults working with unaccompanied minors.
The
Asylum Procedures Directive (2005/85/EC) sets out special guarantees for
unaccompanied minors. Article 17 states that Member States have to ensure that
a representative represents and/or assists the unaccompanied minor with respect
to the examination of the application. This representative can also be the represent-
ative referred to in Article 19 of the
Reception Conditions Directive. The representa-
tive has to accompany the minor to the asylum interview and be given adequate
time to discuss matters with the minor beforehand. Any interview with an unac-
companied minor must be conducted by someone with knowledge of the special
needs of this group.
Under Article 10 of th
e Return Directive (2008/115/EC), when removing an unac-
companied minor from a Member State’s territory, the authorities of that Member
State must be satisfied that he or she will be returned to a member of his or her
family, a nominated guardian or adequate reception facilities in the state of return.
There is no absolute ban on returning unaccompanied minors, but the decision to
return must give due consideration to the best interests of the child. If return is
postponed or a period for voluntary repatriation granted, children’s special needs
must be taken into account (Article 14).
Under the ECHR, the ECtHR has held that respecting the best interests of the child
requires that other placement options than detention be explored for the unaccom-
panied minors.
Example: In
Rahimi v. Greece,414 the applicant was an unaccompanied Afghan
minor who had been detained in an adult detention centre and later released
without the authorities offering him any assistance with accommodation.
The ECtHR concluded that the applicant’s conditions of detention and the
authorities’ failure to take care of him following his release had amounted to
degrading treatment proscribed by Article 3.
414 ECtHR,
Rahimi v. Greece, No. 8687/08, 5 April 2011.
209
Handbook on European law relating to asylum, borders and immigration
9.1.2. Age assessment
Under EU law, th
e Asylum Procedures Directive allows Member States to use medi-
cal examinations to determine the age of unaccompanied minors within the con-
text of their asylum application (Article 17). In cases where medical examinations
are used, Member States should ensure that unaccompanied minors are informed
beforehand of such an assessment and that their consent is sought. The age as-
sessment issue has become increasingly contentious throughout Europe. Since mi-
nors are afforded increased protection in the asylum process and receiving states
have an extra ‘duty of care’ for them in other matters including accommodation and
education, some individuals arrive in an EU territory, often without documentation,
claiming to be under the age of 18. These individuals may then find themselves
subject to examination in order to determine whether they are, in fact, below the
age of 18 years. The test results will often have a significant impact on their asylum
application and access to social welfare. There is no guidance in the directive as to
what types of medical examinations are appropriate or adequate, and a wide vari-
ety of techniques are applied throughout Europe.
Under the Council of Europe system, the Convention on Action against Trafficking
in Human Beings (‘Trafficking Convention’) also envisages an age assessment when
the age of the victim is uncertain, but provides no guidance as to the nature of
a suitable assessment (Article 10 (3)).415
9.2. Victims of human trafficking
A distinction should be made between ‘smuggling’ and ‘trafficking’. Smuggling of
migrants is an activity undertaken for a financial or other material benefit by pro-
curing the illegal entry of a person into a state where the person is not a national or
a permanent resident.416
Under both EU and ECHR law, trafficking of persons is “[the] recruitment, transpor-
tation, transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving of payments
415 Separated Children in Europe Programme (SCEP) (2012); In accordance with European Commission
(2010)
Action Plan on Unaccompanied Minors, COM(2010) 213 final, 6 May 2010, EASO has started
developing technical documentation, including specific training and a handbook on age assessment.
416 United Nations Protocol against the Smuggling of Migrants by Land, Air and Sea supplementing the
UN Convention against Transnational Crime, Art. 3.
210
Persons with specific needs
or benefits to achieve the consent of a person having control over another person,
for the purpose of exploitation”.417 There is an element of compulsion and intimida-
tion involved in trafficking that is not involved in smuggling.
Under the ECHR,
the ECtHR held in
Rantsev v. Cyprus and Russia418 that trafficking
falls within the scope of Article 4 of the ECHR, which prohibits slavery and forced la-
bour. Member States are under a positive obligation to put effective provisions into
place for the protection of victims and potential victims of trafficking, in addition to
criminal provisions for punishing traffickers.
Example: In
Rantsev v. Cyprus and Russia,419 the Court held that it was
important that a victim of trafficking should not need to request an
identification or investigation; The authorities are obliged to take the initiative
themselves when such criminal activity is suspected.
The Trafficking Convention is the first European treaty to provide detailed provisions
on the assistance, protection and support to be provided to victims of trafficking in
addition to the Member States’ obligations to carry out effective criminal investiga-
tions and to take steps to combat trafficking. The Convention requires state parties
to adopt legislative or other measures necessary for identifying victims of traffick-
ing, and to provide competent authorities with trained personnel qualified in pre-
venting and combating trafficking and identifying and helping victims of trafficking
(Article 10). Parties must adopt measures as necessary to assist victims in their re-
covery (Article 12).
Under EU law, the
Trafficking Directive (2011/36/EU)420 defines trafficking in the
same terms as the Council of Europe Trafficking Convention. Under the directive,
Member States must ensure that victims of trafficking have access to legal coun-
sel without delay. Such advice and representation has to be free of charge where
the victim does not have sufficient financial resources (Article 12). The directive
also introduces the concept of criminal and civil liability of legal persons as well
as that of natural persons. Child victims of trafficking receive particular attention in
417 Council of Europe, Convention on Action against Trafficking in Human Beings, CETS No. 197, 2005, Art. 4;
Directive 2011/36/EU, OJ L 337/9, Art. 2 (1).
418 ECtHR
, Rantsev v. Cyprus and Russia, No. 25965/04, 7 January 2010, paras. 282-286.
419
Ibid., para. 288.
420 Directive 2011/36/EU, OJ L 337/9, 5 April 2011.
211
Handbook on European law relating to asylum, borders and immigration
the directive, especially with regard to assistance and support (Articles 13-16). Such
assistance and support measures include: a guardian or representative being ap-
pointed to the child victim as soon as the authorities identify the child (Article 14);
interviews with the child being conducted without delay and, where possible, by
the same person (Article 15); and a durable solution based on the best interests of
the child in cases of unaccompanied child victims of trafficking (Article 16).
The
Trafficking Directive protects victims of trafficking against prosecution for
crimes that they have been forced to commit, which may include passport offences,
offences linked with prostitution or working illegally under national law. The assis-
tance and support provided to victims of trafficking should not be conditional upon
cooperation with the authorities in a criminal investigation (Article 11). There are
also procedural safeguards for victims involved in criminal proceedings (Article 12),
including free legal representation where the victim does not have sufficient finan-
cial resources. Victims need to be treated in a particular way during the procedure
to prevent trauma and re-trauma (Articles 12 and 15). Specific guarantees apply to
child victims of trafficking (Articles 13-16).
Both EU and ECHR law are concerned with the status of trafficking victims once traf-
ficking has been detected. This issue has been dealt with in Section 2.4.
9.3. Persons with disabilities
When seeking asylum, persons with physical, mental, intellectual or sensory im-
pairments may face specific barriers to accessing protection and assistance, and
they may need extra assistance that may not always be provided by the competent
authorities.
The CRPD sets forth international standards concerning persons with disabilities.
Article 5 of the CRPD sets principles of equality and non-discrimination, and Arti-
cle 18 states that “States Parties shall recognize the rights of persons with disabili-
ties to liberty of movement, to freedom to choose their residence and to a national-
ity, on an equal basis with others”.
Under the ECHR, there is no definition of disability, but the ECtHR has held that Arti-
cle 14 protects against discrimination based on disability.421
421 ECtHR
, Glor v. Switzerland, No. 13444/04, 30 April 2009; ECtHR
, Pretty v. the United Kingdom,
No. 2346/02, 29 April 2002.
212
Persons with specific needs
Under EU law, the European Union has ratified the CRPD and is therefore bound by
the Convention. Article 17 of th
e Reception Conditions Directive states that EU Mem-
ber States have to take into account the specific situation of vulnerable persons, in-
cluding persons with disabilities, when implementing the provisions related to recep-
tion conditions and healthcare outlined in the directive. There is no further guidance
on what assessments or measures should be put in place for these vulnerable per-
sons. Only unaccompanied minors and victims of torture and violence have specific
safeguards set out. The
Return Directive also includes persons with disabilities when
defining vulnerable persons, but there are no particular provisions in relation to them.
Under Article 12 of th
e Asylum Procedures Directive, the personal interview may
“be omitted where it is not reasonably practicable, in particular where the com-
petent authority is of the opinion that the applicant is unfit or unable to be inter-
viewed owing to enduring circumstances beyond his/her control”. This is especially
relevant for those with mental disabilities who may not be able to participate ef-
fectively in the interview and thus at risk of not completing an interview. Special
examination techniques may be necessary.
9.4. Victims of torture and other serious
forms of violence
As stated in the introduction to this chapter, victims of torture, rape or other serious
forms of psychological, physical or sexual violence are a group of vulnerable people
that have specific safeguards set out in relation to their treatment.
Under EU law, Article 20 of th
e Reception Conditions Directive contains a duty for
Member States to “ensure that, if necessary, persons who have been subjected to
torture, rape or other serious acts of violence receive the necessary treatment of
damages caused by the aforementioned acts”. This should not just be confined to
medical treatment for physical conditions, but also treatment for mental health is-
sues resulting from the torture or other trauma suffered.
Difficulties in recounting the trauma suffered may cause problems with the per-
sonal interview. Rather than having the interview omitted under Article 12 of the
Asylum Procedures Directive, “Member States shall ensure that the person who
conducts the interview is sufficiently competent to take account of the personal or
general circumstances surrounding the application, including the applicant’s cultural
origin or vulnerability, insofar as it is possible to do so” (Article 13).
213
Handbook on European law relating to asylum, borders and immigration
For those persons in return procedures, if removal is postponed or a period of vol-
untary repatriation granted, the special needs of victims of torture and other seri-
ous forms of violence must be taken into account (Article 14).
A particular category of victims of serious crimes are individuals who have
been subjected to domestic violence. This may also occur in the domestic work
environment.422
Under the ECHR, the ECtHR has held that victims of domestic violence may fall
within the group of ‘vulnerable individuals’, along with children, thereby being en-
titled to Member State protection in the form of effective deterrence against such
serious breaches of personal integrity.423
In 2011, the Council of Europe adopted the Convention on Preventing and Combat-
ing Violence Against Women and Domestic Violence. It is the first legally binding
instrument in the world creating a comprehensive legal framework to prevent vio-
lence, to protect victims and to end the impunity of perpetrators. It is not yet in
force.
Under EU law, victims of domestic violence who are third-country national family
members of EEA nationals are entitled under the
Free Movement Directive to an
autonomous residence permit in case of divorce or termination of the registered
partnership (Article 13 (2) (c)). For family members of third-country national spon-
sors, according to Article 15 (3) of the
Family Reunification Directive (2003/86/EC),
“Member States shall lay down provisions ensuring the granting of an autonomous
residence permit in the event of particularly difficult circumstances” following di-
vorce or separation.
422 FRA has documented the risks that migrants in an irregular situation typically encounter when they are
employed in the domestic work sector, see FRA (2011a).
423 ECtHR
, Opuz v. Turkey, No. 33401/02, 9 June 2009, para. 160.
214
link to page 239 link to page 239 link to page 219
Persons with specific needs
Key points
•
The best interests of the child must be a primary consideration in all actions con-
cerning children (see Section 9.1).
•
Under EU law, the
Asylum Procedures Directive allows EU Member States to use
medical examinations to determine the age of unaccompanied minors within the
context of their asylum application, but the EU Member States have to respect cer-
tain safeguards (see Section 9.1.2).
•
Both under EU law and the ECHR, there is a positive obligation to put into place ef-
fective provisions for the protection of victims and potential victims of human traf-
ficking in addition to criminal provisions punishing the trafficker (see Section 9.2).
•
Under the ECHR, children and victims of domestic violence may fall within the
group of ‘vulnerable individuals’, thereby being entitled to effective State protec-
tion (see Sections 9.1.1 and 9.4).
Further case law and reading:
To access further case law, please consult the guidelines
How to find case law
of the European courts on page 237 of this handbook. Additional materials relating
to the issues covered in this chapter can be found in the
‘Further reading’ section
on page 217.
215
Further reading
The following selection of references includes publications by international organisa-
tions, academics, NGOs as well as by the ECtHR and the FRA. The list of further reading
has been grouped in seven broad categories (general literature, asylum and refugee
law, detention, irregular migrants and return, children, persons with disabilities and
stateless persons). In some cases, it can be noted from the title that the publication re-
lates to more than one area. In addition, articles on the topics covered in this handbook
can be found in different journals, such as the European Journal of Migration and Law,
the International Journal of Refugee Law, the Refugee Survey Quarterly and others.
General literature
Council of Europe, European Court of Human Rights (2011),
Practical guide on
admissibility criteria, Strasbourg, Council of Europe, available at:
www.echr.coe.int/
ECHR/EN/Header/Case law/Case law+analysis/Admissibility+guide.
FRA (European Union Agency for Fundamental Rights) (2011c),
Access to justice in
Europe: an overview of challenges and opportunities, Luxembourg, Publications Office.
FRA (2012),
Fundamental rights: challenges and achievements in 2011,
Luxembourg, Publications Office.
FRA and Council of Europe, European Court of Human Rights (ECtHR) (2011),
Handbook on European non-discrimination law, Luxembourg, Publications Office.
Frigo, M.,
et al. (2011),
Migration and international human rights law: practitioners
guide no. 6, Geneva, International Commission of Jurists.
217
Handbook on European law relating to asylum, borders and immigration
Ktistakis, Y. (2013),
Protecting migrants under the European Convention on Human
Rights and the European Social Charter, Strasbourg Council of Europe Publishing.
Peers, S. (2011),
EU justice and home affairs law, Oxford, Oxford University Press.
UNHCR (2012),
Toolkit on how to request interim measures under Rule 39 of the
Rules of the European Court of Human Rights for persons in need of international
protection, Strasbourg, UNCHR Representation to the European institutions.
Asylum and refugee law
European Council on Refugees and Exiles (ECRE) and European Legal Network
on Asylum (ELENA) (2010),
Survey on legal aid for asylum seekers in Europe,
October 2010, available at
: www.ecre.org/component/content/article/57-policy-
papers/247-ecreelena-survey-on-legal-aid-for-asylum-seekers-in-europe.html.
FRA (2010),
The duty to inform applicants: the asylum-seeker perspective,
Luxembourg, Publications Office.
FRA (2010b),
Access to effective remedies: the asylum-seeker perspective,
Luxembourg, Publications Office.
Gammelthoft-Hansen, T. (2011),
Access to asylum: international refugee law and
the globalisation of migration control, Cambridge, Cambridge University Press.
Goodwin-Gill, G.S., McAdam, J. (2007),
The refugee in international law, Oxford,
Oxford University Press.
Hailbronner, K. (2010),
EU Immigration and Asylum Law, Munich, C.H. Beck.
Hathaway, J.C. (2005),
The rights of refugees under international law, Cambridge,
Cambridge University Press.
Mole, N. and Meredith, C. (2010),
Human rights files, no. 9: asylum and the
European Convention on Human Rights (5th edition), Strasbourg, Council of Europe.
Wagner, M. and Bonjour, S. (2009),
Flughafenverfahrensstudie: Vergleichende
Studie des rechtlichen Rahmens und administrativer Praktiken hinsichtlich
der Behandlung von Asylgesuchen und der Rückführung von unzureichend
218
Further reading
dokumentierten Personen an Flughäfen in sieben Europäischen Staaten (Comparative study on asylum procedures at airport), Vienna International Centre
for Migration Policy Development (ICMPD).
UNHCR (2011),
Handbook and guidelines on procedures and criteria for
determining refugee status under the 1951 Convention and the 1967 Protocol
relating to the status of refugees, HCR/1P/4/ENG/REV. 3, Luxembourg, UNHCR.
UNHCR (2010),
Improving asylum procedures: comparative analysis and
recommendations for law and practice – key findings and recommendations,
availabl
e at www.unhcr.org/4ba9d99d9.html.
UNHCR and Council of Europe (2010),
Protecting refugees, available at:
http://book.coe.int/ftp/3582.pdf.
Irregular migrants and return
Cholewinski, R. (2005),
Irregular migrants: access to minimum social rights,
Strasbourg, Council of Europe.
Council of Europe, Committee of Ministers (2005),
Twenty guidelines on forced
return, available at:
www.unhcr.org/refworld/publisher,COEMINISTERS,THEMGUIDE,,
42ef32984,0.html.
Council of Europe, Commissioner for Human Rights (2001), Recommendation
concerning the rights of aliens wishing to enter a Council of Europe member state
and the enforcement of expulsion orders, CommDH(2001)19, 19 September 2001.
FRA (2011a),
Migrants in an irregular situation employed in domestic work:
Fundamental rights challenges for the European Union and its Member States,
Luxembourg, Publications Office.
FRA (2011b),
Fundamental rights of migrants in an irregular situation in the
European Union, Luxembourg, Publications Office.
FRA (2011),
Migrants in an irregular situation: access to healthcare in 10 European
Union States, Luxembourg, Publications Office.
Lutz, F. (2010),
The negotiations on the Return Directive, Nijmegen, Wolf Legal Publishers.
219
Handbook on European law relating to asylum, borders and immigration
Detention
Council of Europe, European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) (2011),
The CPT standards, (2002) 1 –
Rev. 2011, available at
www.cpt.coe.int/en/docsstandards.htm.
Council of Europe, Committee of Ministers (2006), Recommendation Rec(2006)2 of
the Committee of Ministers to Member States on the European Prison Rules,
11 January 2006.
Council of Europe, European Court of Human Rights (2012),
Guide on Article 5:
Right to liberty and security, Article 5 of the Convention, Strasbourg, Council of Europe,
available at:
http://www.echr.coe.int/NR/rdonlyres/45CE4A15-7110-494E-8899-
AC824132C136/0/POINTS_CLES_Article_5_EN.pdf.
Council of Europe, Parliamentary Assembly (2010),
The detention of asylum
seekers and irregular migrants in Europe: Report Doc.12105 (2010) /
Resolution 1707 (2010) / Recommendation 1900 (2010), available at:
Report Doc.12105 (2010)
http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc10/
EDOC12105.htm;
Resolution 1707 (2010)
http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta10/ERES1707.htm;
Recommendation 1900 (2010)
www.coe.int/t/dghl/standardsetting/cddh/OPINIONS/Recommendation%20
1900_2010_%20The%20detention%20of%20asylum%20seekers%20and%20
irregular%20migrants%20in%20Europe.pdf.
Edwards, A. (2011),
Back to basics: the right to liberty and security of person and
‘alternatives to detention’ of refugees, asylum-seekers, stateless persons and
other migrants, Paper prepared for the UN High Commissioner for Refugees Legal
and Protection Policy Research Series, April 2011.
FRA (2010a),
Detention of third-country nationals in return procedures,
Luxembourg, Publications Office.
FRA (2011),
Coping with a fundamental rights emergency: The situation of
persons crossing the Greek land border in an irregular manner, available at:
http://fra.europa.eu/en/publication/2011/coping-fundamental-rights-emergency-
situation-persons-crossing-greek-land-border.
220
Further reading
International Detention Coalition (2011),
There are alternatives: A handbook for
preventing unnecessary immigration detention, Melbourne, International Detention
Coalition, available at:
http://idcoalition.org/cap/handbook.
Free movement in the EU
Rogers, N., Scannell, R. and Walsh, J. (2012),
Free movement of persons in the
enlarged European Union (2nd edition), London, Sweet & Maxwell.
Persons with disabilities
UNHCR (2010),
Monitoring the Convention on the Rights of Persons with
Disabilities, guidance for human rights monitors, HR/P/PT/17, available at
www.ohchr.org/Documents/Publications/Disabilities_training_17EN.pdf.
FRA (2011),
The legal protection of persons with mental health problems under
non-discrimination law, Luxembourg, Publications Office.
Children
Council of Europe, Parliamentary Assembly (2011), Recommendation 1969 (2010) on
unaccompanied children in Europe: issues of arrival, stay and return, 15 April 2011.
Separated Children in Europe Programme (SCEP) (2012),
Position paper on age
assessment in the context of separated children in Europe, available at:
www.unhcr.org/refworld/country,,,,EST,,4ff535f52,0.html.
United Nations High Commissioner for Refugees (UNHCR) (2006),
UNHCR guidelines
on formal determination of the best interests of the child, available at:
www.unhcr.org/4566b16b2.pdf.
FRA (2010),
Separated, asylum-seeking children in European Union Member States,
Luxembourg, Publications Office.
Stateless persons
UNHCR (2012)
, Guidelines on statelessness no. 2: Procedures for determining
whether an Individual is a stateless person, HCR/GS/12/02, available at:
www.unhcr.org/refworld/docid/4f7dafb52.html.
221
Online sources
Sources
Web address
UN level
UN Special Rapporteur on torture and
www.ohchr.org/EN/Issues/Torture/
other cruel, inhuman or degrading
SRTorture/Pages/SRTortureIndex.aspx
treatment or punishment
UN sub-committee on prevention of torture
www2.ohchr.org/english/bodies/
cat/opcat/index.htm
UN treaty bodies jurisprudence
http://tb.ohchr.org/default.aspx
Refworld (UNHCR refugee law database)
www.unhcr.org/cgi-bin/texis/
vtx/refworld/rwmain
Council of Europe level
European Committee for the Prevention
www.cpt.coe.int/en/about.htm
of Torture and Inhuman or Degrading
Treatment or Punishment (CPT)
ECtHR
www.echr.coe.int
ECtHR case law database HUDOC
http://hudoc.echr.coe.int
ECtHR library
www.echr.coe.int --> Library
ECtHR collection of factsheets
www.echr.coe.int --> Press
ECtHR case law information notes
www.echr.coe.int --> Case-Law
Council of Europe Commissioner
www.coe.int/t/commissioner/default_en.asp
for Human Rights
European Social Charter
www.coe.int/t/democracy/
migration/default_en.asp
Council of Europe Migration Co-
www.coe.int/t/democracy/
ordination service
migration/default_en.asp
Group of Experts on Action against
www.coe.int/t/dghl/monitoring/trafficking/
Trafficking in Human Beings (GRETA)
docs/monitoring/greta_EN.asp
223
Handbook on European law relating to asylum, borders and immigration
EU level
European Asylum Support Office (EASO)
http://www.easo.europa.eu/
EASO, European Asylum Curriculum
www.asylum-curriculum.eu
European Commission, Directorate
http://ec.europa.eu/dgs/home-affairs
General on Home Affairs
European Migration Network
www.emn.europa.eu
EU Immigration Portal
http://ec.europa.eu/immigration
FRA
http://fra.europa.eu/fraWebsite/
home/home_en.htm
Frontex
http://frontex.europa.eu
European Council on Refugees and Exiles (ECRE)
www.ecre.org
224
List of cases
Case-law of the Court of Justice of the European Union
Abdon Vanbraekel and Others v. Alliance nationale des mutualités chrétiennes
(ANMC), C-368/98, 12 July 2011 ...............................................................................197
Abed El Karem El Kott and Others, C-364/11, 19 December 2012 ..............................75
Achughbabian v. Prefet du Val-de-Marne, C-329/11, 6 December 2011 ... 135, 146, 149
Aissatou Diatta v. Land Berlin, C-267/83, 13 February 1985 .....................................129
Alexander Hengartner and Rudolf Gasser v. Landesregierung Vorarlberg,
C-70/09, 15 July 2010 ................................................................................................178
Altun v. Stadt Böblingen, C-337/07, 18 December 2008 ...................................... 53, 54
Atiqullah Adil v. Minister voor Immigratie, Integratie en Asiel,
C-278/12 PPU, 19 July 2012 .......................................................................................30
Aziz Melki and Selim Abdeli [GC], Joined Cases C-188/10 and C-189/10, ..................30
Baumbast and R v. Secretary of State for the Home Department,
C-413/99, 17 September 2002 ..................................................................................189
Borowitz v. Bundesversicherungsanstalt für Angestellte, C-21/87, 5 July 1988 ......201
Bundesrepublik Deutschland v. B and D, Joined Cases C-57/09 and
C-101/09, 9 November 2010 ............................................................................... 60, 80
Chakroun v. Minister van Buitenlandse Zaken, C-578/08, 4 March 2010 .... 50, 112, 125
Chuck v. Raad van Bestuur van de Sociale Verzekeringsbank,
C-331/06, 3 April 2008 ..............................................................................................201
225
Handbook on European law relating to asylum, borders and immigration
Cimade, Groupe d’information et de soutien des immigrés (GISTI) v. Ministre de
l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration,
C-179/11, 27 September 2012 ..................................................................................194
Commission v. Spain, C-503/03, 31 January 2006 ......................................................121
Deborah Lawrie-Blum v. Land Baden-Württemberg, C-66/85, 3 July 1986.............178
Deutscher Handballbund v. Kolpak, C-438/00, 8 May 2003 .....................................183
Dirk Rüffert v. Land Niedersachsen, C-346/06, 3 April 2008 ....................................179
Eker v. Land Baden-Wüttemberg, C-386/95, 29 May 1997 .......................................180
El Dridi, C-61/11, 28 April 2011 ...........................................................135, 145, 146, 148
El Yassini v. Secretary of State for the Home Department,
C-416/96, 2 March 1999 ..........................................................................................183
Eran Abatay and Others and Nadi Sahin v. Bundesanstalt für Arbeit,
Joined Cases C-317/01 and C-369/01, 21 October 2003 ...........................................52
European Commission v. Kingdom of Spain, C-211/08, 15 June 2010 ......................197
European Commission v. Kingdom of the Netherlands, C-508/10, 26 April 2012.....51
European Parliament v. Council of the EU, C-355/10, 5 September 2012 ..................37
European Parliament v. Council of the EU, C-540/03, 27 June 2006 ..................37, 124
Fatma Pehlivan v. Staatssecretaris van Justitie, C-484/07, 16 June 2011 ................129
Federal Republic of Germany v. Y and Z, Joined Cases C-71/11 and C-99/11,
5 September 2012 .......................................................................................................65
Foto-Frost, C-314/85, 22 October 1987 ..........................................................................20
Francovich and Bonifaci and Others v. Italian Republic, Joined Cases C-6/90
and C-9/90, 19 November 1991 .........................................................................19, 160
Francovich v. Italian Republic, C-479/93, 9 November 1995 ......................................19
G. B. C. Echternach and A. Moritz v. Minister van Onderwijs en Wetenschappen,
Joined Cases C-389/87 and 390/87, 15 March 1989 ...............................................189
Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land
Baden-Württemberg,
Joined Cases C-482/01 and C-493/01, 29 April 2004 .............87
Hava Genc v. Land Berlin, C-14/09, 4 February 2010 .................................................181
Hristo Gaydarov v. Director na Glavna direktsia “Ohranitelna politsia” pri
Ministerstvo na vatreshnite raboti, C-430/10, 17 November 2011 ........................87
Igor Simutenkov v. Ministerio de Educación y Cultura and
Real Federación Española de Fútbol, C-265/03, 12 April 2005 .............................185
Iida v. Stadt Ulm (City of Ulm), C-40/11, 8 November 2012 ................................87, 120
226
List of cases
Ismail Derin v. Landkreis Darmstadt-Dieburg, C-325/05,
18 July 2007 ...............................................................................................................181
K v. the Bundesasylamt, C-245/11, 6 November 2012 ...................................... 91, 102
Kadi and Al Barakaat International Foundation v. Council of the European Union
and Commission of the European Communities, Joined Cases C-402/05 P and
C-415/05 P, 3 September 2008...................................................................................19
Kadiman v. State of Bavaria, C-351/95, 17 April 1997 ..............................................181
Kadzoev,
C-357/09, 30 November 2009 .................................41, 49, 136, 152, 153, 154
Land Baden-Württemberg v. Panagiotis Tsakouridis, C-145/09,
23 November 2010 .....................................................................................................86
Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Svenska
Byggnadsarbetareförbundets avdelning 1 Byggettan and Svenska
Elektrikerförbundet, C-341/05, 18 December 2007 ................................................179
Leymann & Pustovarov, C-388/08, 1 December 2008 .................................................93
Liselotte Hauer v. Land Rheinland-Pfalz, C-44/79, 13 December 1979 .....................20
M. M. v Minister for Justice, Equality and Law Reform, Ireland and Attorney
General, C-277/11, 22 November 2012 .....................................................................93
Maria Teixeira v. London Borough of Lambeth and Secretary of State
for the Home Department, C-480/08, 23 February 2010 ......................................189
Mary Carpenter v. Secretary of State for the Home Department,
C-60/00, 11 July 2002................................................................................................118
McCarthy v. Secretary of State for the Home Department, C-434/09, 5 May 2011 ....119
Md Sagor, C-430/11, 6 December 2012 ....................................................................145
Mehmet Soysal and Ibrahim Savatli v. Bundesrepublik Deutschland,
C-228/06, 19 February 2009 .......................................................................................52
Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van Justitie,
C-465/07, 17 February 2009 .......................................................................................66
Metock v. Minister for Equality, Justice and Law Reform,
C-127/08, 25 July 2008 ..............................................................................111, 118, 125
Micheletti, C-369/90, 7 July 1992; ................................................................................55
Migrationsverket v. Nurije Kastrati and Others, 3 May 2012, C-620/10 ...................101
Mohamed Gattoussi v. Stadt Rüsselsheim, C-97/05, 14 December 2006 ................184
Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (MRAX)
v. Belgian State,
C-459/99, 25 July 2002 .........................................................118, 121
Murat Dereci and Others v. Bundesministerium für Inneres, C-256/11,
15 November 2011, para. 68. .....................................................................87, 111, 120
Murat Polat v. Stadt Rüsselsheim, C-349/06, 4 October 2007 ....................................88
227
Handbook on European law relating to asylum, borders and immigration
N.S. v. Secretary of State for the Home Department and M.E. and Others v. Refugee
Applications Commissioner & Minister for Justice, Equality and Law Reform,
Joined Cases C-411/10 and C-493/10,
21 December 2011 .................................................. 21, 59, 79, 91, 103, 104, 109, 194
Natthaya Dülger v. Wetteraukreis, C-451/11, 19 July 2012 .................................53, 131
Nawras Bolbol v. Bevándorlási és Állampolgársági Hivata,
C-31/09, 17 June 2010 .......................................................................................... 62, 75
Office National de l’emploi v. Kziber, C-18/90, 31 January 1991 ..............................183
Oguz v. Secretary of State for the Home Department,
C-186/10, 21 July 2011 ......................................................................................... 52, 53
Ömer Nazli, Caglar Nazli and Melike Nazli v. Stadt Nürnberg,
C-340/97, 10 February 2000 .......................................................................................88
P.I. v. Oberbürgermeisterin der Stadt Remscheid, C-348/09, 22 May 2012 ....... 60, 86
Petar Aladzhov v. Zamestnik director na Stolichna direktsia na vatreshnite raboti
kam Ministerstvo na vatreshnite raboti, C-434/10, 17 November 2011 ................87
Pilar Allué and Carmel Mary Coonan and Others v. Università degli studi
di Venezia and Università degli studi di Parma, Joined Cases C-259/91,
C-331/91 and C-332/91, 2 August 1993 ...................................................................178
Recep Tetik v. Land Berlin, C-171/95, 23 January 1997 ...................................... 53, 181
Rottmann v. Freistaat Bayern, C-135/08, 2 March 2010 ...................................... 42, 55
Ruiz Zambrano v. Office national de l’emploi, C-34/09,
8 March 2011 .........................................................................41, 87, 111, 119, 120, 123
Rutili v. Ministre de L’interieur,
C-36/75
, 28 October 1985 .........................................88
Salahadin Abdulla and Others v. Bundesrepublik Deutschland,
Joined Cases C-175/08, C-176/08, C-178/08, C-179/08,
2 March 2010 ............................................................................................ 60, 62, 74, 81
Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration,
C-69/10, 28 July 2011 ..................................................................................................96
Case-law of the European Court of Human Rights
A. and Others v. the United Kingdom [GC], No. 3455/05,
19 February 2009 ............................................................................. 139, 143, 150, 151
A. A. v. the United Kingdom, No. 8000/08,
20 September 2011 ................................................................................... 73, 113, 132
228
List of cases
Abdolkhani and Karimnia v. Turkey, No. 30471/08,
22 September 2009 .......................................................................91, 94, 96, 136, 158
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
Nos. 9214/80, 9473/81 and 9474/81, 28 May 1985 ....................................... 27, 116
Afif v. the Netherlands (dec.), No. 60915/09, 24 May 2011 ....................................191
Ahmed v. Austria, No. 25964/94, 17 December 1996.......................................... 45, 63
Airey v. Ireland, No. 6289/73 09 October 1979 ................................................ 106, 108
Al-Jedda v. the United Kingdom [GC], No. 27021/08, 7 July 2011 ............................142
Al-Saadoon and Mufdhi v. the United Kingdom, No. 61498/08, 2 March 2010 ........68
Amrollahi v. Denmark, No. 56811/00, 11 July 2002 ..................................................132
Amuur v. France, No. 19776/92, 25 June 1996 ..................................... 25, 35, 139, 148
Anakomba Yula v. Belgium,
No. 45413/07, 10 March 2009 .....................................123
Anayo v. Germany, No. 20578/07, 21 December 2010 .............................................106
Andrejeva v. Latvia [GC], No. 55707/00, 18 February 2009 ............................. 172, 199
Antwi and Others v. Norway, No. 26940/10, 14 February 2012...............................132
Aristimuño Mendizabal v. France,
No. 51431/99, 17 January 2006 ...........................55
Auad v. Bulgaria, No. 46390/10, 11 October 2011 ........................................... 136, 154
Austin and Others v. the United Kingdom [GC],
Nos. 39692/09, 40713/09 and 41008/09, 15 March 2012 ........................... 138, 139
Babar Ahmad and Others v. the United Kingdom, Nos. 24027/07, 11949/08,
36742/08, 66911/09 and 67354/09, 10 April 2012 .................................................81
Bader and Kanbor v. Sweden, No. 13284/04, 8 November 2005 ..............................67
Bah v. the United Kingdom, No. 56328/07, 27 September 2011 .................... 173, 191
Bajsultanov v. Austria, No. 54131/10, 12 June 2012 .................................................122
Balogun v. the United Kingdom, No. 60286/09, 10 April 2012 ................................131
Beldjoudi v. France, No. 12083/86, 26 March 1992 ...................................................132
Bensaid v. the United Kingdom, No. 44599/98, 6 February 2001 ...........................195
Berrehab v. the Netherlands, No. 10730/84, 21 June 1988 .............................112, 130
Bigaeva v. Greece, No. 26713/05, 28 May 2009 ................................................171, 176
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC],
No. 45036/98, 30 June 2005 ............................................................................... 16, 22
Boultif v. Switzerland, No. 54273/00, 2 August 2001 ...............................112, 131, 132
Branko Tomašić and Others v. Croatia, No. 46598/06, 15 January 2009 ................167
C.G. and Others v. Bulgaria, No. 1365/07, 24 April 2008 ............................. 91, 95, 106
Chahal v. the United Kingdom [GC], No. 22414/93, 15 November 1996 .................151
Chapman v. the United Kingdom [GC], No. 27238/95, 18 January 2001 .................190
Collins and Akaziebie (dec.), No. 23944/05, 8 March 2007 ........................................72
229
Handbook on European law relating to asylum, borders and immigration
Čonka v. Belgium,
No. 51564/99, 5 February 2002 ........................................60, 83, 97
D. v. the United Kingdom, No. 30240/96,
2 May 1997 ..................................................................................................................70
Dalea v. France (dec.) No. 964/07, 2 February 2010 ...................................................32
Darraj v. France, No. 34588/07, 4 November 2010 ...................................................165
Darren Omoregie and Others v. Norway, No. 265/07, 31 July 2008 ................111, 122
Dbouba v. Turkey, No. 15916/09, 13 July 2010 ..................................................157, 158
De Souza Ribeiro v. France, no. 22689/07, 13 December 2012 ........................... 91, 99
Demir and Baykara v. Turkey [GC], No. 34503/97, 12 November 2008 ...................175
Dougoz v. Greece, No. 40907/98, 6 March 2001 ............................................... 148, 159
El Morsli v. France (dec.), No. 15585/06, 4 March 2008 ..............................................34
Fawsie v. Greece, No. 40080/07, 28 October 2010 ....................................................199
Finogenov and Others v. Russia, Nos. 18299/03 and 27311/03,
20 December 2011 ....................................................................................................167
Finucane v. the United Kingdom,
No. 29178/95, 1 July 2003 ...................................169
Foka v. Turkey,
No. 28940/95, 24 June 2008;
Nolan and K. v. Russia,
No. 2512/04, 12 February 2009...................................................................... 138, 139
G.R. v. the Netherlands, No. 22251/07, 10 January 2012 .................................107, 123
Gaygusuz v. Austria, No. 17371/90, 16 September 1996 ......................... 172, 173, 199
Gebremedhin [Gaberamadhien] v. France,
No. 25389/05, 26 April 2007 ...........91, 98
Genovese v. Malta, No. 53124/09
, 11 October 2011 ...................................................56
Gillow v. the United Kingdom, No. 9063/80, 24 November 1986 .................. 172, 190
Glor v. Switzerland,
No. 13444/04, 30 April 2009 .....................................................212
Gül v. Switzerland, No. 23218/94, 19 February 1996 ........................................112, 126
Guzzardi v. Italy, No. 7367/76, 6 November 1980 ............................................ 138, 139
H.L. v. the United Kingdom, No. 45508/99, 5 October 2004 ....................................138
H.L.R. v. France [GC], No. 24573/94, 29 April 1997 ......................................................69
Hida v. Denmark, No. 38025/02, 19 February 2004 ..............................................76, 82
Hirsi Jamaa and Others v. Italy [GC], No. 27765/09,
23 February 2012 .................................................................. 26, 38, 39, 60, 83, 91, 99
Hode and Abdi v. the United Kingdom, No. 22341/09, 6 November 2012 .............126
I.M. v. France, No. 9152/09, 2 February 2012 ..................................................... 91, 100
Ilhan v. Turkey [GC], No. 22277/93, 27 June 2000 .....................................................168
230
List of cases
Ismoilov and Others v. Russia, No. 2947/06, 24 April 2008 ..................................77, 81
Kanagaratnam and Others v. Belgium, No. 15297/09, 13 December 2011 ............155
Karassev v. Finland (dec.), No. 31414/96, 12 January 1999 ........................................56
Kaya v. Turkey, No. 22729/93, 19 February 1998 ......................................................168
Kiyutin v. Russia, No. 2700/10, 10 March 2011 ............................................................49
Koua Poirrez v. France, No. 40892/98, 30 September 2003 ............................ 172, 199
Kučera v. Slovakia, No. 48666/99, 17 July 2007 ........................................................168
Kudła v. Poland [GC], No. 30210/96, 26 October 2000 ........................................ 96, 97
Kuduzović v. Slovenia (dec.),
No. 60723/00, 17 March 2005......................................56
Kurić and Others v. Slovenia [GC], No. 26828/06, 26 June 2012 ................................51
Liu v. Russia, No. 42086/05, 6 December 2007 ...........................................................43
Longa Yonkeu v. Latvia, No. 57229/09, 15 November 2011 ............................ 136, 150
Louled Massoud v. Malta, No. 24340/08, 27 July 2010 .............................................153
Luczak v. Poland, No. 77782/01, 27 November 2007 ...............................................199
M. and Others v. Bulgaria,
No. 41416/08, 26 July 2011 ............................................146
M.S. v. the United Kingdom, No. 24527/08, 3 May 2012 ..........................................155
M.S.S. v. Belgium and Greece [GC],
No. 30696/09,
21 January 2011 ...59, 79, 91, 92, 94, 96, 99, 103, 104, 107, 109, 155, 159, 165, 190
Maaouia v. France (dec.), No. 39652/98, 12 January 1999 ........................................95
Maaouia v. France, No. 39652/98, 5 October 2000 ...................................................106
Makaratzis v. Greece [GC], No. 50385/99, 20 December 2004 .................................167
Mamatkulov and Askarov v. Turkey [GC],
No. 46827/99 and 46951/99, 4 February 2005 ..................................... 41, 47, 60, 85
Mannai v. Italy, No. 9961/10, 27 March 2012 ..............................................................64
Mastromatteo v. Italy [GC], No. 37703/97, 24 October 2002 ....................................167
Mathloom v. Greece,
No. 48883/07, 24 April 2012 ...................................................153
Matsiukhina and Matsiukhin v. Sweden (dec.), No. 31260/04, 21 June 2005 ..........72
Matthews v. the United Kingdom [GC], No. 24833/94, 18 February 1999 ................16
McCann and Others v. the United Kingdom [GC], No. 18984/91,
27 September 1995 ...........................................................................................167, 169
Medvedyev and Others v. France [GC], No. 3394/03, 29 March, 2010 ......................37
Mikolenko v. Estonia, No. 10664/05, 8 October 2009 ..............135, 136, 141, 146, 152
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium,
No. 13178/03, 12 October 2006 .............................................................. 136, 155, 159
Muminov v. Russia, No. 42502/06,
11 December 2008 ........................................71, 74
Muskhadzhiyeva and Others v. Belgium,
No. 41442/07, 19 January 2010 ..... 136, 155
231
Handbook on European law relating to asylum, borders and immigration
N. v. Sweden, No. 23505/09, 20 July 2010 ...................................................................73
N. v. the United Kingdom [GC], No. 26565/05, 27 May 2008 ...............................59, 70
NA. v. the United Kingdom, No. 25904/07, 17 July 2008 ............................... 45, 69, 82
Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98,
6 July 2005 .................................................................................................................167
Nada v. Switzerland [GC], No. 10593/08, 12 September 2012 ...................................33
Nolan and K v. Russia, No. 2512/04, 12 February 2009 ........................... 35, 138, 139
Nowak v. Ukraine, No. 60846/10
, 31 March 2011 .............................................135, 156
Nunez v. Norway, No. 55597/09, 28 June 2011 .........................................................122
O’Donoghue and Others v. the United Kingdom, No. 34848/07,
14 December 2010 ....................................................................................................116
Omojudi v. the United Kingdom, No. 1820/08, 24 November 2009 ........................113
Omwenyeke v. Germany (dec.),
No. 44294/04, 20 November 2007 ................ 44, 141
Onur v. the United Kingdom, No. 27319/07, 17 February 2009 ...............................122
Opuz v. Turkey, No. 33401/02, 9 June 2009 ...................................................... 205, 214
Osman v. Denmark,
No. 38058/09, 14 June 2011 .............................................112, 127
Osman v. the United Kingdom [GC], No. 23452/94, 28 October 1998 ....................167
Othman (Abu Qatada) v. the United Kingdom,
No. 8139/09,
17 January 2012 ..............................................................................................59, 77, 85
Peers v. Greece, No. 28524/95, 19 April 2001 ...........................................................159
Phull v. France (dec.), No. 35753/03, 11 January 2005 ...............................................34
Ponomaryovi v. Bulgaria, No. 5335/05, 21 June 2011 ......................................171, 188
Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012. ...................147, 155
Powell v. the United Kingdom (dec.), No. 45305/99, 4 May 2000 ...........................195
Pretty v. the United Kingdom, No. 2346/02, 29 April 2002. .............................113, 212
Price v. the United Kingdom No. 33394/96, 10 July 2001 .........................................155
R.C. v. Sweden, No. 41827/07, 9 March 2010 ........................................................ 72, 73
Rachwalski and Ferenc v. Poland,
No. 47709/99, 28 July 2009 .......................113, 168
Rahimi v. Greece, No. 8687/08, 5 April 2011 ............................................205, 206, 209
Raimondo v. Italy,
No. 12954/87, 22 February 1994 .................................................139
Ramsahai and Others v. the Netherlands [GC], 15 May 2007 ..................................169
Rantsev v. Cyprus and Russia, No. 25965/04,
7 January 2010 .................................................................41, 46, 136, 140, 155, 159, 211
Riad and Idiab v. Belgium, Nos. 29787/03 and 29810/03, 24 January 2008 ......35, 139
Rodrigues da Silva and Hoogkamer v. the Netherlands, No. 50435/99,
31 January 2006 ............................................................................................... 123, 130
232
List of cases
Rusu v. Austria, No. 34082/02, 2 October 2008 .................................................135, 150
Ryabikin v. Russia,
No. 8320/04, 19 June 2008 .....................................................77, 81
S. and Marper v. the United Kingdom [GC],
No. 30562/04, 4 December 2008 ......166
S.D. v. Greece,
No. 53541/07, 11 June 2009 ......................................136, 155, 158, 159
S.F. and Others v. Sweden, No. 52077/10, 15 May 2012 ...................................... 71, 72
S.H.H. v. the United Kingdom, No.
60367/10, 29 January 2013..................................70
S.P. v. Belgium (dec.), No. 12572/08, 14 June 2011 ..................................................148
Saadi v. Italy [GC],
No. 37201/06, 28 February 2008 .................. 59, 64, 72, 73, 77, 81
Saadi v. the United Kingdom [GC], No. 13229/03,
29 January 2008 .................................................. 41, 44, 135, 136, 144, 149, 150, 157
Salah Sheekh v. the Netherlands, No. 1948/04, 11 January 2007 ..........59, 64, 68, 72
Saleck Bardi v. Spain, No. 66167/09, 24 May 2011 ....................................................106
Sen v. the Netherlands, No. 31465/96, 21 December 2001 .............................112, 127
Siałkowska v. Poland, No. 8932/05, 22 March 2007 .................................................107
Singh and Others v. Belgium, No. 33210/11, 2 October 2012 ....................................72
Singh v. the Czech Republic, No. 60538/00, 25 January 2005 ..........................136, 151
Slivenko v. Latvia [GC], No. 48321/99, 9 October 2003 ...............................................56
Stamose v. Bulgaria, No. 29713/05, 27 November 2012 ............................................33
Soering v. the United Kingdom,
No. 14038/88, 7 July 1989 .......................... 59, 63, 64
Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07,
28 June 2011 .................................................................................59, 60, 69, 70, 73, 77
Sultani v. France, No. 45223/05, 20 September 2007 .................................................83
Taïs v. France, No. 39922/03, 1 June 2006 .................................................................169
Tanlı v. Turkey, No. 26129/95, 10 April 2001 ..............................................................169
Tarariyeva v. Russia, No. 4353/03
, 14 December 2006 ....................................163, 169
Timishev v. Russia, Nos. 55762/00 and 55974/00, 13 December 2005...................187
Tomic v. the United Kindgom (dec.),
No. 17837/03, 14 October 2003 .......................82
Üner v. the Netherlands [GC], No. 46410/99, 18 October 2006 ...............112, 113, 131
Velikova v. Bulgaria, No. 41488/98, 18 May 2000 ............................................167, 169
Vilvarajah and Others v. the United Kingdom, No. 13163/87, 13164/87,
13165/87, 13447/87 and 13448/87, 30 October 1991 ..................................... 64, 82
Wasilewski v. Poland (dec.), No. 32734/96, 20 April 1999 ...................... 172, 195, 198
Weller v. Hungary, No. 44399/05, 31 March 2009 ....................................................200
Xhavara and Others v. Italy and Albania, No. 39473/98, 11 January 2001 ..............37
233
Handbook on European law relating to asylum, borders and immigration
Yoh-Ekale Mwanje v. Belgium,
No. 10486/10, 20 December 2011 .........................143
Z.N.S. v. Turkey, No. 21896/08, 19 January 2010 .......................................................158
European Commission of Human Rights,
East African Asians (British
protected persons) v. the United Kingdom (dec.), Nos. 4715/70, 4783/71
and 4827/71, 6 March 1978 .......................................................................................36
European Commission of Human Rights,
Family K. and W. v. the Netherlands
(dec.), No. 11278/84, 1 July 1985 ..............................................................................56
European Commission of Human Rights,
Jaramillo v. the United Kingdom
(dec.), No. 24865/94, 23 October 1995...................................................................123
European Commission of Human Rights,
Sorabjee v. the United Kingdom (dec.),
No. 23938/94, 23 October 1995 ......................................................................112, 123
European Commission of Human Rights,
Stewart v. the United Kingdom (dec.),
No. 10044/82, 10 July 1984 .....................................................................................167
European Commission of Human Rights,
Karus v. Italy (dec.),
No. 29043/95, 20 May 1998 ............................................................................171, 188
Case-law of European Committee of Social Rights
COHRE v. France, Complaint No. 63/2010, merits, 28 June 2011 ..............................192
COHRE v. Croatia, Complaint No. 52/2008, merits, 22 June 2010 ............................192
COHRE v. Italy, Complaint No. 58/2009, merits, 25 June 2010 .................................192
Defence for Children International v. the Netherlands,
Complaint
No. 47/2008, merits, 20 October 2009 ..........................50, 173, 192, 207
European Roma and Travellers Forum v. France,
Complaint No. 64/2011, merits,
22 January 2012 ..........................................................................................................84
International Federation of Human Rights Leagues v. France,
Complaint No. 14/2003, merits, 8 September 2004 ............................... 50, 175, 195
Marangopoulos Foundation for Human Rights v. Greece,
Complaint No. 30/2005 ............................................................................................177
Case-law of the UN Human Rights Committee
A v. Australia, Communication No. 560/1993, views of 30 April 1997 ....................149
234
List of cases
Ranjit Singh v. France, Communications Nos. 1876/2000 and 1876/2009,
views of 22 July 2011 ..................................................................................................34
Case-law of national courts
Austria, Austrian Constitutional Court (
Österreichische Verfassungsgerichtshof),
decision G31/98, G79/98, G82/98, G108/98 of 24 June 1998; ..............................96
Czech Republic, Czech Constitutional Court (
Ústavní soud Ceské republiky)
decision No. 9/2010, Coll., January 2010. .................................................................96
France, Council of State,
M. A., No. 334040, 1 July 2011. ............................................70
France, Council of State, M. Ghevondyan, No. 356505, 4 June 2012. .........................48
France, Council of State,
M et Mme Forabosco, No. 190384, 9 June 1999. ...............31
France, Council of State,
M Hicham B, No. 344411, 24 November 2010. ..................31
Germany, Bundesverfassungsgericht, No. 56/2012, 18 July 2012. ..........................201
Malta,
Abdul Hakim Hassan Abdulle Et v. Ministry tal-Gustizzja u Intern Et,
Qorti Civili Prim’Awla (Gurisdizzjoni Kostituzzjonali), No. 56/2007,
29 November 2011. .....................................................................................................64
Swiss Federal Supreme Court in its decision BGE 136 II 5, 29 September 2009. .......118
The United Kingdom, Supreme Court,
R (Quila and another) v. Secretary
of State for the Home Department [2011] UKSC 45, 12 October 2011 ................115
The United Kingdom, Supreme Court,
WL (Congo) 1 & 2 v. Secretary of State
for the Home Department; KM (Jamaica) v. Secretary of State for the Home
Department [2011] UKSC 12, 23 March 2011. .........................................................142
The United Kingdom, FGP v. Serco Plc & Anor [2012] EWHC 1804 (Admin),
5 July 2012. ................................................................................................................168
235
How to find case law
of the European courts
European Court of Human Rights: HUDOC case law database
The
HUDOC database provides free access to ECtHR case law:
http://HUDOC.echr.coe.int.
The database is available in English and French and provides a user-friendly search
engine that makes it easy to find case law.
Video tutorials and user manuals are available on the HUDOC
Help page.
For help with the search functions and options, the user can place the mouse
pointer on the for more details and examples of how to use that search function.
The case law references in this handbook provide the reader with comprehensive
information that will enable them to easily find the full text of the judgment or
decision cited.
Before starting a search, please note that the default settings show the Grand
Chamber and Chamber judgments in the order of the latest judgment published.
To search in other collections such as decisions, the user should tick the appropri-
ate box in the ‘
Document Collections’ field appearing on the upper left side of the
screen.
The simplest way to find cases is by entering the application number into the
‘Application Number’ field under the
Advanced Search on the upper right side of
the screen and then clicking the blue ‘Search’ button.
237
Handbook on European law relating to asylum, borders and immigration
To access further case law pertaining to other issues, for example, asylum-related
issues, the user can use the
Search field indicated with a magnifying glass on the
top right part of the screen. In the search field, the user can search using a:
· single word (e.g. asylum, refugees)
· phrase (e.g. “asylum seekers”)
· case title
· State
· Boolean phrase (e.g. aliens NEAR residence)
Alternatively, the user can open the
Simple Boolean search by clicking on the ar-
row appearing inside of the
Search field. The Simple Boolean search offers five
search possibilities: this exact word or phrase, all of these words, any of these
words, none of these words, Boolean search. When performing a Boolean search, it
is important to remember that phrases must be surrounded by double quotes and
Boolean operators must always be in capital letters (e.g. AND, NEAR, OR, etc.)
Once the search results appear, the user can easily narrow the results using the filters
appearing in the ‘
Filters’ field on the left side of the screen, for example, ‘Language’ or
‘State’. Filters can be used individually or in combination to further narrow the results.
The ‘Keywords’ filter can be a useful tool, as it often comprises terms extracted from
the text of the ECHR and is directly linked to the Court’s reasoning and conclusions.
Example: Finding the Court’s case law on the issue of expulsion of asylum
seekers putting them at risk of torture or inhuman or degrading treatment or
punishment under Article 3 ECHR
1) The user first enters the phrase “asylum seekers” into the
Search field and
clicks the blue ‘Search’ button.
2) After the search results appear, the user then selects the ‘3’ under the
‘Violation’ filter in the ‘
Filters’ field to narrow the results to those related to
Article 3.
3) The user can then select keywords under the ‘Keywords’ filter to narrow
the results to those relevant to Article 3, such as the keywords ‘(Art. 3)
Prohibition of torture’.
238
How to find case law of the European courts
For more significant cases, a legal summary is available in HUDOC. The summary
comprises a descriptive head note, a concise presentation of the facts and the law,
with emphasis on points of legal interest. If a summary exists, a link will appear in
the results together with the link to the judgment text or decision. Alternatively, the
user can search exclusively for legal summaries by ticking the ‘Legal Summaries’
box in the ‘
Document Collections’ field.
If non-official translations of a given case have been published, a link will appear
in the results together with the link to the judgment text or decision. HUDOC also
provides links to third-party internet sites that host other translations of ECtHR case
law. For more information, see ‘Language versions’ under the HUDOC ‘Help’ section.
Court of Justice of the European Union: CURIA case law database
The
CURIA case law database provides free access to ECJ/CJEU case law:
http://curia.europa.eu.
The search engine is available in all official EU languages424 and can be used to
search for information in all documents related to concluded and pending cases by
the Court of Justice, the General Court and the Civil Service Tribunal.
There is a ‘
Help’ section available at
http://curia.europa.eu/common/juris/en/aid-
eGlobale.pdf#. Each search box also has a help page that can be accessed by click-
ing the icon and contains useful information to help the user make the best possible
use of the tool.
The simplest way to find a specific case is to enter the full case number into the
search box entitled ‘
Case number’ and then clicking the green ‘Search’ button.
It
is also possible to search for a case using a part of the case number. For example,
entering 122 in the ‘Case number’ field will find Case No. 122 for cases from any
year and before any of the three courts: Court of Justice, the General Court and/or
the Civil Service Tribunal.
424 Available since 30 April 2004: Spanish, Danish, German, Greek, English, French, Italian, Dutch,
Portuguese, Finnish and Swedish; since 1 May 2004: Czech, Estonian, Latvian, Lithuanian, Hungarian,
Polish, Slovak and Slovene; since 1 January 2007: Bulgarian and Romanian; since 30 April 2007: Maltese;
since 31 December 2011: Irish; temporary derogations have been laid down by Council Regulations (EC)
Nos. 930/2004 and 1738/2006, and Council Regulation No. 920/2005.
239
Handbook on European law relating to asylum, borders and immigration
Alternatively, one can also use the ‘
Name of parties’ field to search with the com-
mon name of a case. This is usually the simplified form of the names of the parties
to the case.
There are a total of 16 multi-functional search fields available to help narrow the
search results. The different search fields are user-friendly and can be used in vari-
ous combinations. The fields often have search lists that can be accessed by clicking
the icon and selecting available search terms.
For more general searches, using the ‘
Text’ field produces results based on keyword
searches in all documents published in the European Court Reports since 1954, and
since 1994 for the European Court Reports – Staff Cases (ECR-SC).
For more subject-specific searches, the ‘
Subject-matter’ field can be used. This re-
quires clicking the icon to the right of the field and selecting the relevant subject(s)
from the list. The search results will then produce an alphabetised list of selected
documents related to the legal questions dealt with in the decisions of the Court
of Justice, the General Court, the Civil Service Tribunal and in the Opinions of the
Advocates General.
The CURIA website also has additional case law tools:
‘
Numerical access’: this section is a collection of case information for any case
brought before one of the three courts. The cases are listed by their case number
and in the order in which they were lodged at the relevant registry. Cases can be
consulted by clicking on their case number. The ‘Numerical access’ section is avail-
abl
e at http://curia.europa.eu/jcms/jcms/Jo2_7045/.
‘
Digest of the case-law’: this section offers a systematic classification of case law
summaries on the essential points of law stated in the decision in question. These
summaries are based as closely as possible on the actual wording of that decision.
The ‘Digest’ section is availabl
e at http://curia.europa.eu/jcms/jcms/Jo2_7046/.
‘
Annotation of judgments’: this section contains references to annotations by legal
commentators relating to the judgments delivered by the three courts since they
were first established. The judgments are listed separately by court or tribunal in
chronological order according to their case number, while the annotations by le-
gal commentators are listed in chronological order according to their appearance.
240
How to find case law of the European courts
References appear in their original language. The ‘Annotation of judgments’ section
is available at
http://curia.europa.eu/jcms/jcms/Jo2_7083/.
‘
National case-law database’: this external database can be accessed through the
CURIA website. It offers access to relevant national case law concerning EU law. The
database is based on a collection of case law from EU Member State national courts
and/or tribunals. The information has been collected by a selective trawl of legal
journals and direct contact with numerous national courts and tribunals. The ‘Na-
tional case-law database’ is available in English and in French and is available at:
http://curia.europa.eu/jcms/jcms/Jo2_7062/.
241
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242
Annex 1: Applicability of EU regulations and directives cited in this handbook
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243
Handbook on European law relating to asylum, borders and immigration
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and
celand o
9-49)
nd d
006 L 6
rincipality o
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000/365/EC a
iss C
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ntered i
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006 L 5
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p. 3
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unity
n t
nion a
O
celand a
r i
oncerning t
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p. 3
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m
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nd e
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reland i
002/192/EC o
ram
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tate o
6.10.2004 a
nd t
ecision 2
he p
cquis (
ark o
76, p
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nd t
Com
pplication a
n 2
ork o
nd I
on t
espect o
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nd t
unity, o
8.02.2008, a
enm
uropean U
ber S
stablishing t
011 L 1
n r
m
unity, t
1.04.2006 (
epublic o
1.2.2006 (
ew
ecision 2
m
n 2
f D
em
J 2
ouncil D
nto t
unity a
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he E
n 0
onfederation c
O
ssociation o
999 L 1
or e
chengen a
m
om
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f 2
igned o
ram
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nion a
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European
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ingdom a
O
reland i
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he a
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entation, a
orce o
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2.12.2004
ouncil D
he S
igned o
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ingdom o
tate o
rticle 4
f 2
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igned o
plem
nto f
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iss C
9.12.2011 (
nto t
nited K
nd C
ntegrated i
uropean C
m
nion, the
w
; a
ay o
odged i
echanism
6.6.2000 (
uropean U
ent o
uropean C
U
cquis, s
he K
ber S
unity a
itzerland, s
m
006/167/EC o
nd t
w
n 1
he U
uropean C
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orw
he i
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nd t
em
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f t
nion, A
cquis i
n 2
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f t
nd m
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ntered i
om
n S
rticle 4
f N
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ith t
sylum l
r i
orce o
orders and Visa’ and ‘Irregular M
unity a
ntegrated i
004/926/EC o
orce o
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ther M
nd e
ecision 2
unity, t
ehalf o
nion, t
European
chengen a
unity a
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tate o
m
riteria a
nto f
osition o
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nion, A
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ingdom o
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ecision 2
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ber S
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ssociation w
een
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equest f
ouncil D
p. 3
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p. 2
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on t
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y t
0.03.
on t
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ent o
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3, p
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1)
p. 7
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4, p
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pplication a
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n 1
een t
uropean C
chengen a
ork o
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9)
nd e
ent o
onclusion, o
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enm
ining a r
n a M
o. 2
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ew
osition o
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ent betw
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o. 1
etw
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oncerning t
ents listed under ‘B
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0-47) a
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N
nd C
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002 L 6
N
een t
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008 L 5
oncluded b
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evelopm
xam
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ram
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een t
p. 4
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odged i
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nd d
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9) o
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entation, a
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rotocol (
8.5.1999 a
ents
odged i
3, p
3–47), a
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Protocol b
onvention, signed o
001 L 9
8.1.2008 (
s
N
epublic o
ent b
he S
sylum l
ee A
s
or a
igned o
31, p
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J 2
f 2
iss C
reland (
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he
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igned o
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greem
n t
pplication a
c instrum
or a
ay
esponsible f
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Protocol b
w
rotocol (
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Agreem
nto t
ublin C
chengen a
ith t
pplication a
Agreem
ee
is (including instrum
ntegrated i
rotocol (
ee
A
orw
tate r
ee
equest f
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u
000 L 1
nion, t
cquis, s
s
ee
he D
.37);
N
s
see P
J 2
orthern I
ee P
he S
nd
stein see t
s
equest f
f t
nd
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nd
nd t
stein s
itzerland, s
acq
cquis i
O
f t
tates w
la
of Liechtenstein
entation, a
6, p
w
ark
1.04.2001 (
la
ay and Iceland s
ark
008/147/EC o
en
nited Kingdom
nd N
pplication o
o S
ining a r
n S
nm
U
ntegrated i
w
tzer
entation, a
onfederation o
plem
nm
nto 0
tzer
unity, a
r i
he
orw
uropean U
chengen a
ining a r
he a
m
006 L 6
xam
m
otes:
plem
iss C
ecision 2008/146/EC o
pplication of specifi
ublin II and Eurodac Regulations
J 2
ecision 2
N
Scheng
For
De
For t
Schengen a
29.5.2000. (
Britain a
For
Ireland s
acquis i
provisions o
For
N
the E
the S
for t
those t
For
Swi
im
D
Sw
For
Liechten
Principality
the i
A
D
For
De
exam
application o
(O
for
Iceland a
establishing t
force i
for
Swi
for e
D
for
Liechten
Com
State o
244
Annex 1: Applicability of EU regulations and directives cited in this handbook
I
he
IS I
he
he
f
he
n t
o S
f t
igned
n t
nder t
iss
1–59).
he
xtending
olely o
w
ccess t
6/2011 o
f t
999
ther, o
ersons, s
o 7
p. 5
he S
hereto
he 1
ave a
rovisions o
ecision
he o
003 e
f p
I D
o t
stablished u
f t
03, p
/2011 o
nd t
ut h
he p
ay 2
rovisions s
f t
IS I
ittee N
ent o
m
4 M
o. 2
art, a
rea, b
he S
om
ittee e
012 L 1
nnex I t
m
J 2
f 1
hose p
ne p
ovem
ualifications) t
f A
nly t
y t
oint C
om
ecision N
2 o
2013.
pplication o
onfederation, o
he o
ree m
o D
f t
7.3.
chengen a
EA J
oint C
he a
iss C
59/2003 o
he f
overed b
rticle 2
he S
n t
herefore o
he E
he J
w
n t
f t
f t
o. 8
tates, o
rofessional q
o A
87/10 2
he S
nto t
f p
J L
010 o
013, t
EC) N
ther, o
nd t
lready c
according t
es
(2012/195/EU) ( O
ber S
ates i
nd
une 2
/2012 o
ecisions o
ot a
em
ccording t
he o
013, O
la
f J
arch 2
art, a
f t
y D
o. 1
chem
re n
ber St
ts M
f 7 M
tzer
ne p
egulation (
ecognition o
ules a
arch 2
em
ho a
Swi
nd i
ecision N
he o
ecurity s
n
ilar r
f 7 M
o M
ended b
utual r
w
m
f t
y D
ouncil R
M
im
010/365/EU o
unity a
s a
ocial s
y C
m
II (
onfederation, o
hese t
013/158/EU o
ates, o
f s
ountries w
om
rea, a
pplicable i
rovide s
iss C
pdated b
nnex I
orders.
ecision 2
ber St
ound b
hird c
o p
w
013/158/EU o
ania.
ic A
s u
f t
ccepted t
om
ecision 2
4);
em
he S
es, a
ever b
uropean C
ever t
conom
. 2
ts M
nd t
nternal b
as a
ouncil D
nd R
oordination o
ow
rovisionally a
he E
eplacing A
ow
n i
ecision 2
nd C
ouncil D
61, p
chem
nd i
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ationals o
s p
as h
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II o
011 r
ouncil h
o C
o n
A) a
n t
ains h
I, i
een t
ulgaria a
uropean E
ho h
ne p
itle I
ouncil D
012 L 1
unity a
em
he C
f B
ecurity s
m
ent o
itle I
etw
ber 2
w
2)
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or T
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ubject t
74/72 t
f T
nd
r s
n t
om
hich r
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y t
nce t
ent b
la
012 (
ocial s
greem
, w
o. 5
eptem
p. 6 - 7
epublic o
y o
f s
xcept f
nly o
2007/533/JH
ent o
0 S
tzer
greem
he R
hat A
tates, o
uropean C
EEC) N
xception o
A
f 3
Swi
14, p
ntry o
n t
ound b
o t
ingdom
o
yprus e
ebruary 2
I t
stablished b
ber S
f e
ecision (
ot b
Agreem
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999
002 L 1
s e
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.
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0 F
em
re n
f 1
oordination o
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nnex I
ith t
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ersons, o
J 2
ania, C
IS I
ystem i
hem
o t
nited K
egulation (
f t
f p
ts M
O
efusal o
I t
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.
) w
pplicable t
om
013, a
he S
nd a
o t
etw
4 o
or r
ation S
n t
the U
nd R
nd i
–3 )
ent o
ot a
pril 2
I f
art a
nnex V
8/2012 o
ent b
o
eplacing A
IS I
nder t
p. 1
rticle 1
nform
o. 1
ent o
ovem
unity a
1.06.2002. (
ulgaria, R
n 9 A
ake p
ee A
se S
pplicable t
greem
012 r
408/71 a
24, p
y A
m
n 0
o B
ot t
nd N
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e a
ay s
greem
ree m
71/EC) is n
om
urposes u
o n
pplicable t
o. 1
0-35)
ill b
he A
arch 2
ble t
chengen I
d
orw
ents
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orce o
3–43) a
he
A
ot a
003 L 1
p. 2
pplies t
pplicable o
e a
o t
nder t
1 M
EEC) N
J 2
irective (2005/36/EU
n t
e a
he S
007) w
p. 3
I t
f 3
is n
O
stablished b
77, p
nto f
ill b
o t
uropean C
e
ode a
Kingkom
ther, o
irective (96/
ecam
ooperation p
une 2
62, p
nnex I
c instrum
cation D
ittee e
he E
011 L 2
ntered i
s Cod
ania w
ted
2 J
ersons o
m
he o
elating t
ni
ee A
stablished u
egulation (
J 2
orders C
m
U
f 1
f p
f R
ationality (
om
f t
O
een t
nd e
udicial c
011 L 2
s
ualifi
orkers D
order
Ro
he
A o
ent and Social Security
J 2
O
nd
ent o
etw
B
egulation b
nd
nd j
cquis r
la
ittee e
heir n
nd t
m
oint C
en
I R
a a
f t
ovem
011 (
tzer
ent b
chengen B
IS I
om
ovem
rovisions o
ISS J
gari
olice a
Posted W
1.06.1999 a
ul
pplication of specifi
-SW
Scheng
greem
The S
SIS II Regulations
The S
B
for p
Schengen a
Ireland a
(2007/533/JH
Free M
For
Liechtenstein, Iceland and N
1 July 2
For
Swi
Joint C
free m
A
Regulation 1231/2010/EU
the p
ground o
Professional Q
EU
Confederation, o
(2011/702/EU) (
The
A
on 2
245
28
28
26
28
25
8
27
15
10
25
1
Total
HR
8
a
a
a
a
a
a
a
x
x
a
s
UK
7
a
a
s
a
x
x
a
a
a
a
s
ts
SK
7
a
a
a
a
a
s
a
x
x
a
s
SI
8
a
a
a
a
a
a
a
x
x
a
s
SE
9
a
a
a
a
a
x
a
a
a
a
s
RO
8
a
a
a
a
a
a
a
x
x
a
x
trumen
PT
8
a
a
a
a
a
s
a
a
x
a
a
PL
6
a
a
a
a
a
x
s
x
x
a
s
NL
9
a
a
a
a
s
a
a
a
a
a
s
MT
8
a
a
a
a
a
x
a
a
x
a
s
6
s
x
x
x
ope ins
LV
a
a
a
a
a
a
a
tia
s
oa
LU
10
a
a
a
a
a
a
a
a
a
a
t signed
LT
7
a
a
a
a
a
x
a
x
x
a
x
f Eur
IT
8
x = no
a
a
a
a
a
s
a
a
a
a
s
s
x
te and Cr
IE
9
a
a
a
a
a
a
a
a
a
ta
HU
7
a
a
a
a
a
s
a
x
x
s
x
FR
8
a
a
a
a
a
x
a
a
s
a
s
FI
8
a
a
a
a
a
a
a
x
x
a
s
s = signed
ouncil o
ES
9
a
a
a
a
a
a
a
a
x
a
s
EL
7
a
a
x
a
a
s
a
a
a
s
s
ed C
y EU Member S
EE
7
a
a
a
a
a
s
a
a
x
s
x
, b
ts
DK
9
a
a
a
a
a
x
a
a
a
a
x
DE
7
a
a
a
a
s
s
a
a
a
a
s
CZ
7
a
a
a
a
a
s
a
x
x
x
x
trumen
f select
CY
7
a
a
a
a
a
a
a
x
x
a
x
te party / applicable
ta
BG
7
a
a
a
a
a
x
a
x
x
a
x
= S
ope ins
BE
8
a
a
a
a
a
s
a
a
a
a
s
a
AT
7
a
a
a
a
a
s
a
x
s
a
s
f Eur
f
try
ns
tc.)
ber o
iolence
Coun
ent,
2005)
ouncil o
um
liens e
2011)
/accessio
ovem
f a
afeguards
ction
ns
tc.)
nd
bating v
ed C
n A
Total n
f m
eings (
om
iolence (
)
ocial a
an B
xpulsion o
liens e
nd c
ratificatio
f a
n S
um
estic v
f select
, etc.
freedom o
Procedural s
2
3
1953)
1955)
onvention o
n H
om
x 2: Applicability o
o. 1
ation
o. 4 (
o. 6
o. 7 (
o. 1
o. 1
nd d
ollective e
vention
ent (
reventing a
f c
xpulsion o
urope C
n p
en a
ation)
onvention o
ssistance (
enalty)
o e
enalty)
Con
f E
rafficking i
om
rotocol N
rty, educ
in
rotocol N
rotocol N
rotocol N
rotocol N
rotocol N
an
rim
stablishm
Anne
R P
R P
R P
R P
sc
R P
Applicability o
edical A
ECHR
ECH
(prope
ECHR P
prohibition o
ECH
(death p
ECH
relating t
ECH
(di
ECH
(death p
European C
M
Europe
on E
Council o
against T
Convention o
against w
246
Annex 2: Applicability of selected Council of Europe instruments
19
17
17
18
18
10
16
3
2
15
2
Total
UA
8
a
a
a
a
a
a
a
x
x
a
s
TR
8
a
a
s
a
s
s
a
a
a
s
a
SM
8
a
a
a
a
a
a
a
x
x
a
x
tes
t signed
ta
RU
4
a
a
a
s
a
s
x
x
x
x
x
RS
8
a
a
a
a
a
a
a
x
x
a
s
x = no
NO
9
a
a
a
a
a
s
a
a
a
a
s
MK
8
a
a
a
a
a
a
a
x
x
a
s
ME
8
a
a
a
a
a
a
a
x
x
a
s
ope member s
MD
7
a
a
a
a
a
s
a
x
x
a
x
s = signed
f Eur
MC
5
a
s
a
a
a
x
a
x
x
x
s
LI
7
a
a
a
a
a
s
a
x
x
x
x
IS
8
s
s
s
ouncil o
a
a
a
a
a
a
a
a
GE
8
a
a
a
a
a
a
a
x
x
a
x
ther C
CH
4
a
s
x
a
a
x
a
x
x
a
x
y o
BA
8
a
a
a
a
a
a
a
x
x
a
s
, b
6
s
x
x
x
x
te party / applicable
ts
AZ
a
a
a
a
a
a
ta
AM
7
a
a
a
a
a
a
s
x
x
a
x
= S
a
AL
8
a
a
a
a
a
a
a
x
x
a
a
trumen
AD
8
a
a
a
a
a
a
a
x
x
a
s
ope ins
try
cessions
f Eur
Coun
tc)
iolence
tions/ac
ent,
2011)
liens e
2005)
ouncil o
ovem
f a
bating v
atifica
afeguards
ction
f m
tc)
nd
om
iolence (
ed C
f r
n A
eings (
nd c
xpulsion o
liens e
ocial a
an B
estic v
f a
n S
um
om
f select
, etc)
freedom o
Procedural s
2
3
1953)
1955)
onvention o
n H
nd d
Total number o
o. 1
ation
o. 4 (
ollective e
o. 6
o. 7 (
o. 1
o. 1
reventing a
f c
vention
ent (
xpulsion o
n p
en a
urope C
ation)
onvention o
ssistance (
enalty)
o e
enalty)
Con
f E
rafficking i
om
rotocol N
rty, educ
rotocol N
rotocol N
rotocol N
rotocol N
in
rotocol N
an
R P
R P
R P
R P
R P
rim
stablishm
sc
R P
Applicability o
edical A
ECHR
ECH
(prope
ECH
prohibition o
ECH
(death p
ECH
relating t
ECH
(di
ECH
(death p
European C
M
Europe
on E
Council o
against T
Convention o
against w
247
HR
15
a
a
x
x
a
a
a
a
a
x
a
x
a
a
x
a
ol 1988
UK
14
a
o
a
o
a
a
o
o
a
a
a
o
a
a
a
a
otoc
ES
22
a
a
a
a
a
a
a
o
a
a
a
a
a
a
a
a
PL
10
a
o
a
o
a
o
o
o
a
o
a
a
o
o
a
a
LU
16
a
a
a
o
a
o
a
o
a
a
a
a
a
a
a
a
x
x
and Additional Pr
EL
21
a
a
a
a
a
a
a
a
a
a
a
a
a
a
DE
15
a
a
a
o
a
a
o
o
a
o
a
a
a
a
a
a
DK
18
a
o
a
o
a
a
x
o
a
a
a
a
a
a
a
a
x
x
ESC (1961)
CZ
15
o
a
a
o
a
a
a
o
a
a
a
a
o
a
SE
23
a
o
o
o
a
a
o
o
a
a
a
o
a
a
a
a
SI
29
a
a
a
a
a
a
a
a
a
a
a
a
o
a
a
a
SK
25
a
a
a
a
a
a
a
a
a
a
a
a
o
a
o
a
RO
17
a
o
o
a
a
a
a
a
a
x
a
a
o
x
o
a
PT
31
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
NL
30
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
MT
20
a
o
a
a
a
a
a
o
a
o
a
o
a
a
a
a
LV
26
a
a
a
o
a
a
a
a
a
a
a
o
a
a
a
a
LT
24
a
a
a
a
a
a
a
a
a
a
a
o
o
a
a
a
IT
30
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
IE
27
a
a
a
a
a
a
a
o
a
a
a
a
a
a
a
a
tia
18
a
a
a
x
a
a
a
a
a
a
a
o
a
a
a
a
oa
HU
ovisions
FR
31
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
FI
26
a
a
o
o
a
a
o
o
a
a
a
a
a
a
a
a
te and Cr
EE
20
a
o
o
o
a
a
o
a
a
o
a
a
o
a
a
a
ta
CY
16
a
o
o
o
a
a
o
o
a
a
a
a
o
a
a
x
f ESC pr
BG
17
a
o
a
o
a
a
a
a
x
x
a
o
o
a
x
a
BE
24
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
e o
ESC (1996)
AT
13
a
o
a
o
a
o
o
o
a
a
a
a
a
a
o
a
y EU Member S
es
tanc
, b
try
ted
e
cep
Coun
e servic
f
tanc
ar
cep
onditions
ely
s
sis
elf
ovisions
Total ac
ork
ork c
lectiv
en and
e
amily
abilitie
f w
ol
alth
y w
ternity o
ation
omen
aining
f he
f the f
f ESC pr
alth
gain c
f childr
f ma
ork
ganise
urity
om social w
x 3: Ac
e o
o w
o or
o bar
yed w
tional tr
t t
onditions o
emuner
tional guidanc
t c
t t
t t
oca
otection o
otection o
tanc
afe and he
air r
otection o
otection o
pr
young persons
pr
emplo
oca
Anne
cep
Ac
Art 1 - righ
Art 2 - jus
Art 3 - s
Art 4 - f
Art 5 - righ
Art 6 - righ
Art 7 -
Art 8 -
Art 9 - v
Art 10 - v
Art 11 - pr
Art 12 - social sec
Art 13 - social and medical as
Art 14 - benefit fr
Art 15 - persons with dis
Art 16 - pr
248
Annex 3: Acceptance of ESC provisions
HR
15
a
x
x
a
a
a
x
ol 1988
UK
14
a
a
a
x
x
x
x
otoc
ES
22
a
a
a
a
a
a
a
PL
10
a
o
a
x
x
x
x
LU
16
a
a
a
x
x
x
x
and Additional Pr
EL
21
a
a
a
a
a
a
a
DE
15
a
a
a
x
x
x
x
DK
18
a
a
x
a
a
a
a
ESC (1961)
CZ
15
a
o
o
a
a
a
a
SE
23
a
a
a
a
a
a
a
x
a
a
a
x
a
a
a
SI
29
a
o
a
a
a
a
a
a
a
a
a
a
a
a
a
SK
25
a
o
o
a
a
a
a
a
a
a
o
a
a
a
x
ted
RO
17
a
o
o
a
a
x
x
a
a
x
o
a
a
x
x
cep
PT
31
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
t ac
NL
30
a
a
o
a
a
a
a
a
a
a
a
a
a
a
a
x = no
MT
20
a
o
x
a
x
x
a
a
a
a
o
a
a
x
x
LV
26
a
a
o
a
a
a
x
a
x
a
a
a
a
a
a
ted
LT
24
a
o
o
a
a
a
x
a
a
a
a
a
a
x
o
cep
IT
30
a
a
a
a
a
a
a
a
x
a
a
a
a
a
a
tion
IE
27
a
a
a
a
x
a
a
a
a
a
o
a
a
a
x
ven
on
HU
18
a
x
x
a
a
a
x
x
x
x
x
x
x
x
x
= partly ac
O
FR
31
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
FI
26
a
a
o
a
a
a
a
a
a
a
a
a
a
a
a
ted
EE
20
a
x
a
a
a
a
x
a
a
x
a
a
a
x
x
cep
CY
16
x
o
a
a
x
a
x
a
a
x
o
a
a
x
x
= ac
BG
17
o
o
x
a
a
a
x
a
a
a
o
a
a
x
x
a
atified only the 1996 ESC C
BE
24
a
a
o
a
a
a
x
x
a
o
x
x
a
a
x
ve r
x
x
x
x
x
x
x
ESC (1996)
AT
13
a
o
o
a
a
o
o
a
s
s
try
ted
f
artie
’s
ounds
t o
cep
f
t
yer
Coun
te MS who ha
ther P
e o
tion
e
f o
f
ymen
esponsibilitie
es
verty
Total ac
ovemen
en and
tanc
f emplo
onsulta
f elderly persons
s o
ers’
lectiv
ory o
sis
ol
edur
t po
xes indica
tion on the gr
ork
ers
f emplo
amily r
oc
f childr
errit
ork
f w
es
xclusion
ork
tiv
tion in impr
onditions
t w
ta
t w
tion and c
otection o
tion o
tion in c
an
discrimina
x
ency
ers with f
esen
-shaded bo
w
otection o
ork in the t
otection and as
forma
orking c
otection in case
otection in case o
ork
otection o
otection agains
lo
pr
young persons
pr
migr
non-
of se
participa
w
pr
termina
pr
insolv
pr
repr
consulta
redundancy pr
pr
and social e
el
tes: Y
Art 17 -
Art 18 - w
Art 19 -
Art 20 -
Art 21 - in
Art 22 -
Art 23 - social pr
Art 24 -
Art 25 -
Art 26 - dignity a
Art 27 - w
Art 28 -
Art 29 -
Art 30 -
Art 31 - housing
No
249
Handbook on European law relating to asylum, borders and immigration
IS
a
o
a
a
a
a
x
x
x
x
a
a
a
a
a
a
a
a
x
x
x
x
x
ESC (1961)
UA
a
o
a
o
a
a
a
a
a
a
a
x
x
a
a
a
a
a
x
a
a
a
a
a
x
a
a
a
a
a
o
TR
a
o
a
o
x
x
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
ted
RU
a
a
a
o
a
a
a
a
a
a
a
o
x
a
o
a
a
o
o
a
a
a
x
a
x
x
a
a
a
x
x
cep
t ac
RS
a
o
a
a
a
a
a
a
a
o
a
a
a
a
a
a
a
a
o
a
a
a
a
a
a
a
x
a
a
a
x
x = no
NO
a
o
o
a
a
a
o
o
a
a
a
a
a
a
a
a
a
x
o
a
a
a
a
a
a
x
o
a
x
a
a
MK
a
a
o
o
a
a
o
a
x
x
a
a
a
x
o
a
x
x
x
a
a
x
x
a
x
a
o
a
a
x
x
ted
cep
ME
a
o
a
o
a
a
o
a
a
o
a
a
a
a
a
a
a
x
o
a
x
x
a
a
x
o
a
a
a
x
x
MD
a
a
o
o
a
a
o
a
a
x
a
a
o
x
o
a
a
o
o
a
a
x
x
a
x
a
o
a
a
x
x
o = partly ac
atified the ESC
GE
a
o
x
o
a
a
a
o
x
o
a
o
x
a
o
x
o
a
a
a
x
x
x
x
x
a
a
x
a
x
x
ted
BA
a
a
x
o
a
a
a
a
a
x
a
o
o
a
x
a
a
x
x
a
a
a
a
x
x
x
x
a
x
x
x
tes who r
cep
ta
tion
AZ
a
x
x
a
a
a
a
a
a
x
a
x
x
a
x
a
x
x
x
a
a
a
x
a
x
a
a
a
a
x
x
= ac
a
ven
on
AM
a
o
o
o
a
a
a
a
x
x
x
o
o
o
o
x
a
a
a
a
x
a
x
a
x
x
a
a
x
x
x
AL
a
a
a
a
a
a
a
a
x
x
a
x
x
x
x
x
x
x
a
a
a
a
x
a
a
a
x
a
a
x
x
ope member s
AD
a
a
a
a
a
x
a
a
a
a
a
a
a
a
a
x
a
o
o
a
x
x
a
x
x
a
x
x
x
a
o
f Eur ESC (1996)
try
t
atified only the 1996 ESC C
ouncil o
es
e r
ymen
d coun
ers
onditions
edur
x
oc
ther C
Thir
omen
ork
ency
xclusion
s
t w
f se
f emplo
es
y o
es
s
an
orking c
tiv
es who hav
yed w
, b
artie
f w
ta
tion o
’s insolv
tat
e
ounds o
t o
oung persons
oung persons
f migr
yer
e s
e servic
esen
ther P
tion
edundancy pr
at
onditions
ely
f emplo
tanc
ar
s
e o
ermina
epr
e r
sis
elf
f o
esponsibilitie
verty and social e
ovisions
tanc
ovemen
f t
ork
f emplo
ork c
lectiv
en and y
en and y
e
amily
f elderly persons
ers’ r
lectiv
abilitie
ory o
sis
onsulta
s o
t po
xes indic
f w
ol
alth
ol
y w
ternity o
tion on the gr
amily r
ork
errit
ation
aining
f he
f the f
f childr
ork
f w
f ESC pr
alth
gain c
f childr
f ma
ork
ganise
urity
om social w
tion and c
tion in impr
otection o
t w
tion in c
e o
o w
o or
o bar
tional tr
discrimina
ers with f
-shaded bo
t t
onditions o
emuner
tional guidanc
w
t c
t t
t t
otection o
otection o
otection o
ork in the t
otection and as
forma
otection in case
otection in case o
ork
otection o
otection agains
lo
tanc
oca
afe and he
onsulta
air r
otection o
otection o
oca
el
: Y
cep
tes
Ac
Art 1 - righ
Art 2 - jus
Art 3 - s
Art 4 - f
Art 5 - righ
Art 6 - righ
Art 7 - pr
Art 8 - pr
Art 9 - v
Art 10 - v
Art 11 - pr
Art 12 - social sec
Art 13 - social and medical as
Art 14 - benefit fr
Art 15 - persons with dis
Art 16 - pr
Art 17 - pr
Art 18 - w
Art 19 - pr
Art 20 - non-
Art 21 - in
Art 22 - participa
Art 23 - social pr
Art 24 - pr
Art 25 - pr
Art 26 - dignity a
Art 27 - w
Art 28 - pr
Art 29 - c
Art 30 - pr
Art 31 - housing
No
250
Total
28
23
15
28
28
28
28
28
19
28
27
27
26
27
25
HR
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
UK
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
SK
14
a
a
a
a
a
a
a
a
x
a
a
a
a
a
a
SI
14
a
a
x
a
a
a
a
a
a
a
a
a
a
a
a
SE
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
RO
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
PT
12
a
a
a
a
a
a
a
a
s
a
a
a
a
a
a
PL
12
t signed
a
x
x
a
a
a
a
a
a
a
a
a
a
a
a
NL
14
a
a
a
a
a
a
a
a
a
a
a
a
a
a
s
x = no
MT
12
a
x
x
a
a
a
a
a
a
a
a
a
a
a
a
LV
14
a
a
a
a
a
a
a
a
x
a
a
a
a
a
a
tions
LU
13
a
a
x
a
a
a
a
a
a
a
a
a
a
a
a
LT
s = signed
13
a
a
x
a
a
a
a
a
x
a
a
a
a
a
a
ven
IT
13
a
a
x
a
a
a
a
a
s
a
a
a
a
a
a
tia
on
oa
IE
12
a
a
a
a
a
a
a
a
s
a
a
a
s
a
s
HU
14
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
FR
14
a
a
s
a
a
a
a
a
a
a
a
a
a
a
a
te and Cr
ta
FI
13
a
a
a
a
a
a
a
a
s
a
a
a
a
a
s
ed UN C
te party / applicable
ES
14
a
a
x
a
a
a
a
a
a
a
a
a
a
a
a
ta
EL
12
= S
a
a
x
a
a
a
a
a
s
a
a
a
a
a
a
a
EE
11
a
x
x
a
a
a
a
a
a
a
s
a
a
a
a
f select
y EU Member S
DK
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
, b
DE
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
e o
s
s
s
tions
CZ
12
a
a
a
a
a
a
a
a
a
a
a
a
CY
x
x
ven
13
a
a
a
a
a
a
a
a
a
a
a
a
a
tanc
on
BG
14
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
BE
13
a
a
x
a
a
a
a
a
s
a
a
a
a
a
a
cep
ed UN C
AT
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
try
tion
ts)
f select
Coun
cessions
an
tion
ven
x 4: Ac
e o
Total number
on
ven
f migr
tions/ac
f
on
ersons
ss C
tanc
onflict)
ss P
tion
ssne
atifica
OC
OC - OP1
OC - OP2
Anne
cep
ven
AW
of r
tele
tele
T - OP
C - OP1
afficking)
Ac
CPR
Refugee C
Sta
Con
Reduction o
Sta
ICERD
IC
ICESCR
CED
CAT
CA
CRC
CR
(armed c
UNT
UNT
(smuggling o
UNT
(tr
CRPD
251
Handbook on European law relating to asylum, borders and immigration
17
12
8
19
19
18
19
19
13
19
19
19
17
18
12
Total
t (1984)
en (2000)
UA
13
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
TR
13
a
x
x
a
a
a
a
a
a
a
a
a
a
a
a
t signed
SM
11
x
x
x
a
a
a
a
a
x
a
a
a
a
a
a
t or Punishmen
omen and Childr
= no
RU
11
a
x
x
a
a
a
a
a
x
a
a
a
a
a
a
x
omen (1979)
onflicts (2000)
ly W
RS
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
t W
reatmen
tes
NO
13
a
a
a
a
a
a
a
a
s
a
a
a
a
a
s
ts (1966)
ading T
ta
acial Discrimination (1965)
MK
14
a
a
x
a
a
a
a
a
a
a
a
a
a
a
a
f R
= signed -
en in armed c
ersons Especial
s
ME
14
a
a
x
a
a
a
a
a
a
a
a
a
a
a
a
al Righ
orms o
f childr
MD
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
ersons (1954)
l F
ts (1966)
ultur
and, Sea and Air (2000)
s P
t o
f Al
y L
MC
11
a
x
x
a
a
a
a
a
x
a
a
a
a
a
s
s (1961)
f Discrimination agains
eles
al Righ
emen
rafficking in P
ope member s
efugees (1951)
ts b
LI
14
a
a
a
a
a
a
a
a
a
a
a
a
a
a
x
f R
tat
snes
an
f S
olitic
orms o
volv
, Social and C
ed Crime (2000)
f Eur
IS
eles
10
a
x
x
a
a
a
a
a
s
a
a
a
s
a
s
l F
tat
f Migr
tatus o
f Al
ganiz
GE
13
a
a
x
a
a
a
a
a
a
a
a
a
a
a
s
tatus o
f S
ersons with Disabilities (2006)
te party / applicable -
conomic
f the Child (1989)
f P
s and Punish T
x
x
ta
e and Other Cruel, Inhuman or Degr
T (2002)
es
ouncil o
CH
14
a
a
a
a
a
a
a
a
a
a
a
a
a
o the S
= S
o the S
t on Civil and P
t on E
ts o
ts o
BA
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
eduction o
tion on the Elimination o
ortur
t T
o the CA
o the CRC on the in
t, Suppr
ther C
ven
AZ
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
elating t
elating t
on
ovenan
ovenan
ol t
ol t
ransnational Or
t the Smuggling o
y o
even
15
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
tion r
tion on R
otoc
otoc
, b
AM
o Pr
tion on the Elimination o
tion agains
tion on the Righ
tion on the Righ
tion on T
AL
ven
vetion r
ven
14
a
a
a
a
a
a
a
a
a
a
a
a
a
a
a
ol agains
ol t
on
on
on
tions
ven
ven
tional Pr
ven
tional Pr
ven
ven
AD
7
x
x
x
a
a
x
a
a
x
a
a
a
x
x
s
ternational C
ternational C
ternational C
otoc
otoc
UN C
UN C
UN C
In
In
In
Con
Con
Op
Con
Op
Con
Con
Pr
Pr
ven
-
-
-
-
-
-
-
-
-
-
-
-
-
-
on
try
T -
tion
tion
tion
CPR
AW
CA
CRC
OC
Coun
cessions
tion
ICERD
IC
T - OP
CRPD
ven
ven
ven
ICESCR
CED
UNT
ven
CA
on
on
on
CRC - OP 1
OC - OP 1
OC - OP 2
ed UN C
on
s C
tions/ac
tion
UNT
UNT
ss C
ven
ts)
ersons C
snes
ssne
onflict)
Refugee C
f select
atifica
on
an
s P
eles
f r
tion
tele
afficking)
tat
e o
ta
eles
ven
f migr
f S
f S
on
ersons C
Stat
tanc
ss P
cep
AW
OC
OC - OP1
OC - OP2 (tr
Total number o
tele
T - OP
C - OP1 (armed c
Ac
CPR
Reduction o
Refugee C
Sta
Reduction o
ICERD
IC
ICESCR
CED
CAT
CA
CRC
CR
UNT
UNT
(smuggling o
UNT
CRPD
252
Annex 5: Country codes
Code
Country
Code
Country
AD
Andorra
IT
Italy
AL
Albania
LI
Liechtenstein
AM
Armenia
LT
Lithuania
AT
Austria
LU
Luxembourg
AZ
Azerbaijan
LV
Latvia
BA
Bosnia and Herzegovina
MC
Monaco
BE
Belgium
MD
Moldova
BG
Bulgaria
ME
Montenegro
CH
Switzerland
MK
Macedonia
CY
Cyprus
MT
Malta
CZ
Czech Republic
NL
The Netherlands
DE
Germany
NO
Norway
DK
Denmark
PL
Poland
EE
Estonia
PT
Portugal
EL
Greece
RO
Romania
ES
Spain
RS
Serbia
FI
Finland
RU
Russia
FR
France
SE
Sweden
GE
Georgia
SI
Slovenia
HR
Croatia
SK
Slovakia
HU
Hungary
SM
San Marino
IE
Ireland
TR
Turkey
IS
Iceland
UA
Ukraine
UK
United Kingdom
253
European Union Agency for Fundamental Rights
European Court of Human Rights - Council of Europe
Handbook on European law relating to asylum, borders and immigration
2013 — 253 pp. — 14.8 x 21 cm
ISBN 978-92-871-9969-0 (CoE)
ISBN 978-92-9239-105-8 (FRA)
doi:10.2811/29307
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10.2811/29307
TK
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R
30
A/E
-1
2-1
C
6
t
1
H
-E
R
N
-C
H
andbo
The European Convention on Human Rights (ECHR) and European Union law provide an increasingly
ok o
important framework for the protection of the rights of foreigners. European Union legislation
relating to asylum, borders and immigration is developing fast. There is an impressive body of case
n Eu
law by the European Court of Human Rights relating in particular to Articles 3, 5, 8 and 13 of the
r
ECHR. The Court of Justice of the European Union is increasingly asked to pronounce itself on the
op
interpretation of European Union law provisions in this field. This handbook presents this European
ea
Union legislation and the body of case law by the two European courts in an accessible way. It is
n l
intended for legal practitioners, judges, prosecutors, immigration officials and non-governmental
aw r
organisations, in the EU and Council of Europe Member States.
elating t
o a
sylum, borders a
nd i
m
m
igration
EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
Schwarzenbergplatz 11 - 1040 Vienna - Austria
Tel. +43 (1) 580 30-60 - Fax +43 (1) 580 30-693
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ISBN 978-92-871-9969-0
EUROPEAN COURT OF HUMAN RIGHTS
COUNCIL OF EUROPE
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