X and X v. Belgium: a missed opportunity for the CJEU to rule on the state’s obligations to issue humanitarian visa for those in need of protection

By Helena De Vylder, lawyer at the Flemish Integration Agency (Agentschap voor Integratie en Inburgering)

On 7 March 2017, the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case PPU X and X v. Belgium. Against the recommendations of the Advocate General, the CJEU left the responsibility for granting humanitarian visas with the Member States. It argued that, although the request for a visa was formally submitted on the basis of Article 25 Visa Code, the situation at stake fell outside the scope of the Visa Code. The applicants submitted the request with the intention to apply for asylum as soon as possible upon their arrival in Belgium and to stay there as refugees, while the Visa Code only covers short-term visa. Continue reading

V.M. and others v. Belgium: The tragic story of yet another “disappeared case”

Guest post by Moritz Baumgärtel, lecturer and researcher at the Department of European and International Public Law at Tilburg University. Moritz recently defended his PhD at the Université libre de Bruxelles. His project was a part of the IAP research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective”.

On 17 November 2016, the Grand Chamber of the European Court of Human Rights decided to strike off its list of cases the application in V.M. and others v. Belgium. The case concerned the reception conditions and the exposure to a risk of inhumane and degrading treatment of a Roma family in the context of a “Dublin transfer” from Belgium to France. The matter was referred to the Grand Chamber following a judgment of the Second Section on 7 July 2015, which had found violations of articles 3 and 13 of the ECHR. In striking out the application because the lawyer failed to maintain contact with the clients, the Grand Chamber added yet another chapter to the already lengthy volume on “disappeared cases”. The Court’s decision raises serious questions regarding the effectiveness of its remedies and the problems it poses for strategically minded lawyers in the migration domain.

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On a positive note: B.A.C. v. Greece

By Ellen Desmet, assistant professor of migration law at Ghent University.

On 13 October 2016, the European Court of Human Rights unanimously found in B.A.C. v. Greece that the Greek state’s omission to decide on an asylum application during more than twelve years violated Article 8 as well as Article 13 in conjunction with Article 8. The Court also considered that there would be a violation of Article 3 in conjunction with Article 13, if the applicant would be returned to Turkey without an assessment ex nunc by the Greek authorities of his personal situation.

This is the first time that the Court finds that an asylum seeker’s prolonged precarious and uncertain situation, due to an unjustified lack of action by the government as regards his asylum request, constitutes a violation of the right to respect for private life as guaranteed by Article 8 ECHR.

The judgment (only in French) has been discussed by Markos Karavias on EJIL: Talk!, and was mentioned by Benoit Dhondt on this blog in a comparative perspective, namely as a promising decision standing in contrast to the striking out of Khan v. Germany by the Grand Chamber. This post provides a complementary analysis of the Court’s considerations under Article 8 ECHR.

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Khan v. Germany, Episode II: The Empire strikes out

Guest post by Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.

Several practitioners were disappointed with the road the ECtHR traveled in Khan v. Germany last year. With the Grand Chamber referral, hope rose for a more sensible approach and greater protection standards for mentally ill migrants on the verge of expulsion. Alas, the Grand Chamber has struck out the case, leaving us with more questions than answers. In what follows I will give a brief description of the case after which I will delve a little bit deeper into some of the issues the decision to strike out has left untouched.

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The potential of a vulnerability-based approach: some additional reflections following O.M. v Hungary

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

As has recently been noted in this blog, the case of O.M. v Hungary adds another tile to the European Court of Human Rights’ (ECtHR) mosaic on vulnerability. The present blog post seeks to start from these premises and dig further into the Court’s reasoning, to reflect on the extent to which vulnerability can be operationalised and meaningfully used in the legal reasoning and when, instead, it risks to remain confined only to a synonym for specific situations deserving attention.

As the readers of this blog may know, O.M. v Hungary concerned the detention to which a gay asylum seeker from Iran was subject while his asylum request was processed and before being granted refugee status. The detention was ordered because, allegedly, Mr. O.M. had not been able to clarify his identity and nationality; had entered irregularly; had not had any resources to live on in Hungary and there was a risk he could frustrate the procedure if left at large. The applicant claimed before the ECtHR that his detention had been unjustified with respect to Article 5(1)(b) of the European Convention on Human Rights (ECHR) and that no individual assessment had been carried out. Notably, the applicant’s sexual orientation had not been taken into consideration, although Mr. O.M. reported to fear harassment in detention because of this circumstance.

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G.J. v. Spain and Access to Justice for Victims of Human Trafficking

Guest post by Ruth M. Mestre i Mestre, Human Rights Institute, University of Valencia.

The G.J. v. Spain Decision (App. no. 59172/12) shows many of the problems victims of human trafficking encounter to access justice. It is, sadly, one of those cases where formalities swallow justice, since the outcome could have been totally different had the Court considered that the circumstances of the case required examination, in spite of, or precisely because of the failure to comply with the “written authority” requirement of submission (Rule 36.1 and 47(5)(1)(c) of the Rules of Court).

The challenges posed to the Court were interesting from the perspective of analysing the gender aspects of human trafficking and specially for determining whether the procedures for the identification of victims of trafficking that subordinate their protection to cooperation in criminal procedures against traffickers are compatible with the positive obligations arising from article 4 ECHR. The inadmissibility of the application leaves these questions unanswered. My comments will briefly engage with two sets of issues, the missed opportunity with regards to trafficking, and its connection to the substantive inadmissibility decision of the Court.

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F.G. v Sweden: fine-tuning the risk assessment in asylum claims

By Salvo Nicolosi

In the Grand Chamber’s ruling of last 23 March 2016, the Strasbourg judges came back on appeal to the controversial case of F.G. v. Sweden, which on 16 January 2014 had divided the Chamber’s judges as to the assessment of the risk of persecution for an Iranian national who had applied for asylum in Sweden.

In its judgment, the Grand Chamber carves out an obligation for the competent domestic authorities to asses “of their own motion” the risk to the applicant, regardless of whether or not the applicant chooses to rely on some elements in his asylum application, when the rights guaranteed under Articles 2 and 3 ECHR are at stake.

The case offers an interesting opportunity to reflect on a twofold issue concerning: a) the assessment of the risk to the applicant of persecution; b) the meaning of the specific ground for persecution in order for an applicant to apply for asylum. Both aspects will be analysed after a short summary of the relevant facts of the case.

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