Council of Europe
ECtHR: The removal of asylum applicants by Türkiye without adequate assessment of the risk of ill-treatment upon return would violate the ECHR
On 6 th February 2024 the European Court of Human Rights (ECtHR) released its judgment in the case of J.A. and A.A. v. Türkiye ( case n° 80206/17).
The case concerns Iraqi applicants and their four children who entered Türkiye in 2014 on valid tourist visas after the bombing of their house in Iraq by ISIS. They applied for residence permit in Türkiye but were arrested and a deportation order was issued against them. They subsequently submitted an asylum request and challenged the deportation order.
The ECtHR recalled the obligation of the States to adequately assess the risk of ill-treatment in the destination country by conducting a rigorous examination of an asylum application. The Court observed that the Turkish Government had failed to demonstrate that the administrative authorities had adequately examined the applicants' asylum request in the light of the principles enshrined in Articles 2 and 3 of the Convention. The Court considered that the Turkish authorities had neither shown that the applicants had been informed of the rejection of their asylum applications, nor that they had been duly notified of any deportation orders. Furthermore, the Court noted that the Istanbul Administrative Court's assessment failed to include any appraisal of the existence of a real risk of ill-treatment in Iraq. Similarly, the Constitutional Court failed to adequately consider the applicants' allegations of serious grounds for fearing persecution in the event of deportation to Iraq, and to take due account of the situation in Iraq. The Court therefore found that the assessment conducted by the Turkish authorities regarding the relevant facts and the risk to which applicants would be exposed upon their removal to Iraq did not satisfy the requirements under Articles 2 and 3 of the Convention, and that a removal of the applicants to Iraq would lead to a violation of Articles 2 and 3 of the Convention in their procedural aspect. Back to top
European Union
CJEU: CJEU ruling may constitute a new element justifying a re-examination of the merits of an asylum application
On 8th February 2024, the Court of Justice of the European Union (CJEU) released its judgment in the case A.A. (C-2016/22), whereby it found that any judgment of the CJEU may constitute a new element in examination of a subsequent international protection application.
The applicant is a Syrian national who left Syria in 2012 out of fear of being recalled to serve in the armed forces or arrested if he refused. The applicant was denied refugee status in Germany but granted him subsidiary protection. Following a ruling by the CJEU concerning a Syrian conscientious objector and the right to asylum, the applicant filed a subsequent asylum application arguing that this ruling constituted a new element. However, the German authorities rejected the application as inadmissible, without examining the merits of the case. The applicant challenged this rejection decision before the German courts. The Administrative Court of Sigmaringen referred preliminary questions to the CJEU asking under what conditions a CJEU ruling can constitute a "new element or fact" required for the subsequent asylum application to be lodged.
By its judgment, the Court indicated that Articles 33(2)(d), 40(2) and 40(3) of Directive 2013/32/EU (recast Asylum Procedures Directive) are to be interpreted as meaning that any judgment of the CJEU constitutes a new element irrespective of the date on which it was released, provided that it significantly increases the likelihood that the applicant qualifies for international protection. The Court added that Article 46(1)(a)(ii) of the Directive opens the possibility for Member States to entitle their national jurisdictions, when overturning the inadmissibility decision, to rule on the application themselves, without having to refer the examination of the application to the determining authorities.
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FRA: Publication of the FRA’s mapping of child protection systems in the EU
On 31st January 2024, the EU Agency for Fundamental Rights (FRA) published its 2023 updated mapping of child protection systems in the EU. In its Chapter 7, focusing on children in migration. FRA is presenting its key findings, recent legislative amendments introduced by Member States on child-related issues, policy development regarding children in migration and is addressing the question of child protection for children displaced from Ukraine.
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EUAA: Publication of the EUAA Practical guide on Interpretation in the Asylum Procedure
On 5th February 2024 the EU Agency for Asylum (EUAA) published its Practical Guide on Interpretation in the Asylum procedure. The guide aims to inform interpreters about their role, the key principles to be followed in the asylum procedure and to provide advice on how to interpret in line with international standards. This practical guide is primarily intended for interpreters in asylum proceedings, but also for interviewers, interpreting coordinators, quality assurance officers and persons involved in the field of international protection.
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National Developments
UK: Judgment of the High Court of Justice recalling principles governing the age assessment procedure of unaccompanied asylum applicants
On 23 rd January 2024, the High Court of Justice delivered its judgment in the case of the King (on the application of Pishtian Karimi) v. Sherffield city council (Case No: AC-2023-LDS-000012) by which it recalled principles governing the age assessment procedure of unaccompanied asylum applicants.
The High Court of Justice in its ruling first recalled that in absence of reliable documentary evidence, an age assessment will depend on the history given, the physical appearance and the behaviour. It further highlighted the importance of not overemphasising physical characteristics in such assessment. The High Court recalled the importance of the “minded-to” process stage during the age assessment procedure. This is the stage when the claimant is informed that a final decision has not yet been made, but there are concerns that she/he is not a child, and that this is the last opportunity for her/him to respond before a final decision is taken. Finally, although the claimant had reached the age of eighteen, the High Court considered that this did not render the claim academic. As a result, the High Court of Justice overturned the judge's order for costs in refusing permission on the papers, granted permission for judicial review and transferred the case to the upper tribunal for determination on the merits. Back to top
Belgium: The CGRS will resume processing Russian and Sudanese cases
On 1st and 5th February 2024, the Belgian Office of the Commissioner General for Refugees and Stateless Persons (CGRS) announced the resuming of case processing for Russian and Sudanese nationals.
The processing of international protection applications submitted by Russian nationals was temporarily blocked due to the recent developments in the country. After collecting new Country of Origin Information (COI), the CGRS is resuming case processing of Russian nationals as of 19th February 2024.
With regard to the processing of international protection applications submitted by Sudanese nationals, after the international conflict broke out in Sudan between the Sudanese Armed Forces (SAF) and the paramilitary Rapid Support Forces (RSF), the CGRS suspended the processing of all Sudanese cases. The CGRS gathered new information on the current situation in Sudan which indicates a need for international protection and will therefore resume processing Sudanese cases from Darfur, Kordofan, Blue Nile and Khartoum as of 26th February 2024.
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NGOs
France Terre d’Asile: Publication of an analysis of the Law of 26th January 2024 to control immigration and improve integration
On 31 st February 2024, France Terre d'Asile published an analysis of the Law of 26 th January 2024 to control immigration and improve integration as promulgated after the decision of the Constitutional Council.
France Terre d'Asile pointed out that the Law contains restrictive and concerning measures relating to deportation, detention, residency, and asylum. In this summary, the organisation reviewed certain measures such as the introduction of the inadmissibility of asylum applications submitted by people benefiting from equivalent protection in a third country ( Article 62 of the Law), the conditioning of access to multi-annual residence permits and resident permits to a certain command of the French language ( Articles 20 and 21 of the Law), or the introduction of new possibilities for the detention of asylum applicants ( Article 41 of the Law). Back to top
ECRE
ECRE: Publication of a policy paper addressing the right to work for asylum applicants in the EU
On 5 th February 2024, ECRE published a policy paper addressing the legal and policy developments affecting asylum applicants’ access to the right to work in the EU.
In this paper, challenges restricting access to work have been identified, such as excessive administrative requirements, discrimination, lack of recognition of qualifications, and the lack or non-implementation of legal obligations for instance. The right to work is essential in ensuring the inclusion of asylum applicants and refugees in their host country, and in guaranteeing that they lead a dignified life. This policy paper therefore also highlights the good practices implemented in certain Member States and concludes with recommendations to Member States and the European Commission aimed at improving asylum applicants’ access to the right to work. Back to top
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