Last Updated on August 13, 2019 by LawEuro
Handbook on European law relating to asylum, borders and immigration
| EU | Issues covered | CoE |
| TFEU, Article 78 and EU Charter of Fundamental Rights, Article 18 (right to asylum), both referring to UN Convention relating to the Status
of Refugees, which enshrines this principle in its Article 33 EU Charter of Fundamental Rights, Article 19 (protection in the event of removal, expulsion or extradition) |
Principle of
non-refoulement |
ECHR, Article 3 as interpreted by the ECtHR in Soering v. the United Kingdom, 1989 (extradition giving rise to exposure to ill-treatment)
ECHR, Article 2 (right to life) ECtHR, Saadi v. Italy, 2008 (absolute nature of prohibition of return to torture) |
| Qualification Directive (2011/95/EU), Article 4 | Assessmentofthe risk | ECtHR, Sufi and Elmi v. the United 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) | ||
| Dublin Regulation, Regulation (EU) 604/2013
CJEU, Joined Cases C-411/10 and C493/10, 2011 N.S. and M.E., (Dublin transfers) |
Dublin transfers | ECtHR, M.S.S. v. Belgium and Greece, 2011 (return to a state of destitution by one EU Member State to another) |
| Return Directive (2008/115/EC), | Expulsion of | ECtHR, N. v. the United Kingdom, |
| Articles 5 and 9 | seriously ill persons | 2008 (proposed removal of
HIV patient where her access to |
| appropriate medical treatment was | ||
| uncertain at home) |
| Diplomatic assurances | ECtHR, Ramzy v. the Netherlands, 2010 (insufficient assurances)
ECtHR, Othman (Abu Qatada) v. the United Kingdom (acceptable assurances) |
|
| EU Charter of Fundamental Rights, Article 18 (right to asylum) | Asylum determination (refugee status and subsidiary protection) | |
| Qualification Directive (2011/95/EU) | ||
| ECJ, C-465/07, Elgafaji, 2009 (subsidiary protection) | ||
| Exclusion from protection: | ||
| CJEU, Joined Cases C-57/09 and C-101/09, B 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 (2011/95/EU), Article 8 | Internal relocation | ECtHR, Sufi and Elmi v. the United Kingdom, 2011 (how to assess humanitarian conditions in cases of |
| relocation protection) | ||
| EU Charter of Fundamental Rights, Article 19 (protection in the event of removal, expulsion or extradition) | Prohibition of collective expulsion | ECHR, Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) |
| 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 | |
| expulsion | v. Turkey, 2005 (risk of a flagrant | |
| on other human | denial of justice under Article 6 of | |
| rights grounds | the ECHR) |
| Long-term Residents: | Third-country nationals with a higher degree of protection from removal | |
| Long-Term Residents Directive (2003/109/EC), Article 12 | ||
| Third-country national family members of EEA nationals: | ||
| Free Movement Directive (2004/38/EC), Article 28 | ||
| CJEU, C-348/09, P. I., 2012 | ||
| CJEU, C-300/11, ZZ, 2013 (notification duties) | ||
| Turkish nationals: | ||
| Association Council Decision 1/80, Article 14 (1) | ||
| ECJ, C-349/06, Polat, 2007 |
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 removal 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 tor- ture, 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 pro- hibition, as is the case under the 1951 Geneva Convention and under the Qualifica- tion Directive (2011/95/EU). 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 3.3).
3.1. The right to asylum and the principle of non-refoulement
Article 33 (1) of the 1951 Geneva Con- vention provides: “No Contracting State shall expel or return (“refouler”) a refu- gee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
The starting point for considering asylum in Europe is the 1951 Geneva Convention and its 1967 Proto- col, which are now largely incorporated into EU law through the Qualification Directive (2011/95/EU). The 1951 Geneva Convention is the specialised treaty for rights of refugees. The non-refoulement principle is the cornerstone of refugee protection.[91] It means that, in principle, refugees must not be returned to a country where they have a reason to fear persecution.
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.[92] 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 3.1.1 to 3.1.8 as well as 4.1.[93]
Under EU law, Article 78 of the TFEU stipulates that the EU must provide a policy for asylum, subsidiary protection and temporary protection, “ensuring compliance 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 Regulation (Regulation (EU) No. 604/2013), the Qualification
Directive (2011/95/EU), the Asylum Procedures Directive (2013/32/EU) and the Reception Conditions Directive (2013/33/EU). All these instruments have been amended. Denmark, Ireland and the United Kingdom are not bound or only partly bound by the EU asylum acquis (see Annex 1).
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 cor- nerstone 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 authori- ties of the Member States in the application of that convention on the basis of common concepts and criteria.”[94]
The Qualification Directive, as revised in 2011,[95] 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 asylum, 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 (2) incorporates the relevant case law of the ECtHR regarding Article 3 of the ECHR.[96]
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 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 values 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 believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he or she was returned.[97]
Example: In Saadi v. Italy,[98] the applicant was a Tunisian national who had been sentenced in Tunisia, while absent from the country, to 20 years’ imprison- ment 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, particu- larly 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,[99] the Maltese Civil Court held that Mal- ta’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 Constitu- tion of Malta.
3.1.1. The nature of the risk under EU law
Under EU law, the Qualification Directive protects against refoulement. Individuals are eligible for refugee status (see Chapter 2 on status and associated documenta- tion) 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:
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 the Qualification Directive also specifies that persecution can take dif- ferent 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 reasons for persecution are enshrined in Article 10 of the Qualification Directive, which in its recast version explicitly requires due consideration of gender identity for the purposes of determining membership of a particular social group.
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 Y and Z joined case,[100] 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 the Qualification Directive and Article 10 of the Charter. Specifically, the Court was asked whether the defini- tion 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 persecu- tion under Article 9 (1) of the directive. The CJEU also held that national authori- ties, 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.
Example: In X, Y and Z,[101] the CJEU stated that when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexu- ality in his country of origin or to exercise reserve in the expression of his sexual orientation.
The protection needs of persons whose asylum claims arise while in the host coun- try (‘sur place refugees’) are recognised; Article 5 of the Qualification Directive spe- cifically 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 protection” to those who do not qualify as refugees but who, if returned to their country of ori- gin or former habitual residence, would face a real risk of suffering serious harm defined as the death penalty or execution (Article 15 (a)), torture or inhuman or degrading treatment or punishment (Article 15 (b)) and serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of inter- national or internal armed conflict (Article 15 (c)).
Example: The Elgafaji case[102] 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 con- flict” referred to in Article 15 (c) of the Qualification Directive. The Court held that the meaning of Article 15 (c) of the directive has its own field of applica- tion 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 circum- stances of the applicant and/or to the general situation in the country of origin.
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 circum- stances, the lower the level of indiscriminate violence required for him to be eli- gible for subsidiary protection under Article 15 (c). In exceptional situations, the applicant may be eligible for subsidiary protection where the degree of indis- criminate violence of an armed conflict reaches such a high level that substan- tial 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.[103]
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 inhuman 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 3.1.7).
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,[104] 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.
Example: In Al-Saadoon and Mufdhi v. the United Kingdom,[105] 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,[106] it may not be necessary to cite evidence of personal risk factors.
Example: In Salah Sheekh v. the Netherlands,[107] the ECtHR found that mem- bers 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 fea- tures 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 Article 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 foreseeable and real risk of ill-treatment contrary to Article 3 of the ECHR.
Example: In NA. v. the United Kingdom,[108] 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 appli- cant, 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,[109] the ECtHR held that the indis- criminate violence in Mogadishu in Somalia was of a sufficient level and inten- sity 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 civil- ians; 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 pres- ence in the country, unless it could be demonstrated that he or she was suf- ficiently 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, ill- ness or humanitarian conditions in that country.
Example: HLR v. France[110] concerned a convicted drug dealer who feared retri- bution from a Columbian drug ring as he had given information to the authori- ties which lead to the conviction of one of their members. The Court, how- ever, held that, at that stage, the Columbian authorities were able to 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 Kingdom[111] 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,[112] 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 medi- cal 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 Kingdom[113] where a disabled applicant failed to prove the “very exceptional circumstances” he would face in Afghanistan that could otherwise pre- vent his removal from the United Kingdom.
Example: Babar Ahmed and Others v. the United Kingdom,[114] 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 condi- tions at ADX Florence (a ‘supermax’ prison) nor by the length of their possible sentences.
Example: In Aswat v. the United Kingdom,[115] the Court found that the proposed extradition of the applicant, a suspected terrorist suffering from a serious men- tal disorder, to the United States would constitute a violation of Article 3, given the uncertainty over his conditions of detention in the receiving country. His mental disorder was of sufficient severity to have necessitated his transfer from ordinary prison to a high-security psychiatric hospital in the United Kingdom. The medical evidence clearly indicated that it continued to be appropriate for him to remain there “for his own health and safety”. Therefore, in light of the available medical evidence, there was a real risk that the applicant’s extradi- tion to a different country and to a different, and potentially more hostile, prison environment would result in a significant deterioration of his mental and physical health and that such a deterioration would be capable of reaching the Article 3 threshold.
Example: In Sufi and Elmi,[116] the Court found that the applicants, if expelled, were likely to find themselves in refugee camps in Somalia and neighbour- ing 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.,[117] 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.
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 treatment contrary to Article 3 of the ECHR upon return.[118]
Example: In S.F. v. Sweden,[119] 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 activi- ties and incidents in Iran before moving to Sweden, and also because the family had been forced to leave Iran irregularly 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 common 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.
On the timing of an assessment, the Qualification Directive provides in Article 4 (3) that it is to be carried out at the time of taking a decision on the application. The revised Asylum Procedures Directive requires in Article 46 (3) that in case of appeals procedures, the examination of facts and points of law is made with respect to the time when the appeal is heard. The timing to assess the cessation of protection sta- tus 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 pro- hibited by Article 2 or 3 of the ECHR. Where such evidence is cited, it is for the gov- ernment to dispel any doubts about it.[120] The ECtHR has acknowledged that asylum 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.[121] However, when information is lacking or when there is a strong reason to question the veracity of his or her submissions, the indi- vidual must provide a satisfactory explanation.[122]
Example: In Singh and Others v. Belgium,[123] the Court noted that the Belgian authorities had rejected documents submitted in support of an asylum appli- cation 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 verifi- cation would have been easily undertaken. Therefore, they had not conducted a close and rigorous scrutiny of the asylum application as required by Article 13 of the ECHR, violating that provision in conjunction with Article 3.
Article 36 ECHR entitles a member state to intervene in a case lodged with the Court by one of its nationals against another member state. This provision – which was inserted into the ECHR to allow a state to provide diplomatic protection to its nation- als – was found not to apply in cases where the applicants’ complaint was fear of being returned to the member state of their nationality, which allegedly would sub- ject them to a treatment contrary to Articles 2 and 3 of the Convention.[124]
Under ECtHR case law, the risk must not only be assessed on the basis of individ- ual factors, but cumulatively.[125] Any assessment must be individualised, taking into account all the evidence.[126] If a person has suffered past persecution, this might be a strong indication that they will suffer future risk.[127]
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.[128]
When an individual has not been expelled, the date of the ECtHR’s assessment is the point in time for considering the risk.[129] This principle has been applied regardless of whether the ECHR right at stake was absolute, such as Article 3, or non-absolute, such as Article 8.[130] When an applicant has already been expelled, the ECtHR will look at whether the individual has been ill-treated or whether the country infor- mation demonstrates substantial reasons for believing that the applicant would be ill-treated.
Example: In Sufi and Elmi v. the United Kingdom,[131] the ECtHR looked at reports by international organisations on the conditions and levels of violence in Soma- lia, 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 anon- ymous sources and conflicted with other information in the public domain. Judg- ing by the available evidence, the Court considered the conditions in Somalia unlikely to improve soon.
Example: In Muminov v. Russia,[132] the applicant was an Uzbek national who was, on the basis of available information, apparently serving a five-year sen- tence 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 suf- ficient 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 the Qualification Directive provides that “[p]rotection against persecution or serious harm can only be provided by […] the State or […] parties or organisations, including international organisations, 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-tempo- rary 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,[133] 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 provid- ing protection under Article 7 (1) of the Qualification Directive must objectively have a reasonable level of capacity and the willingness to prevent acts of per- secution. They must take reasonable steps to prevent persecution by, among other things, operating an effective legal system accessible to the person con- cerned 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 a specific protection regime exists. 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 (Article 12 (1) (a) of the Qualification Directive which incorporates Article 1D of the 1951 Geneva Convention into EU law).
Example: The Bolbol case[134] 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 Qual- ification 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,[135] 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 – vio- lated may entail an examination of any protection that the receiving state or organi- sations within it might make available to the individual to be removed. There is a similarity between the concept of sufficiency of protection in refugee cases (as pre- viously 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 practi- cally able and willing to protect the individual against that risk.
Example: In Hida v. Denmark,[136] 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 communi- ties, such as Roma. The Court noted that the United Nations Interim Administra- tion 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 prac- tical 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 situa- tion 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 is given to assurances. More usually the Court will first assess the quality of assurances 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 recent case law.[137]
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 therefore not in need of international protection.
Under EU law, the possibility of an internal protection has been codified in Article 8 of the Qualification Directive.
Under the ECHR, a proposed internal relocation by the state must undergo a detailed 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 indi- vidual circumstances is also required.
Example: In Sufi and Elmi v. the United Kingdom,[138] 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 admit- tance 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 treat- ment 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.[139]
3.1.6. Safety elsewhere
Under EU law, an EU Member State may be permitted, for international protection reasons, to return an applicant to another country for the examination of his or her application, provided such country is considered safe and that certain safeguards are respected. This section explains when this is possible, whereas the applicable pro- cedural safeguards are described in Section 4.2 and for unaccompanied minors in Section 9.1.
Two situations presume safety in another country. A country can be considered safe if it fulfils a set of requirements listed in the Asylum Procedures Directive (Article 38). 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 Conven- tion. 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 Regulation (Regu- lation (EU) No. 604/2013), namely the 28 EU Member States as well as Iceland, Liechtenstein, Norway and Switzerland (see Section 4.2).[140] The Dublin Regulation involves an allocation of responsibility to Member States for examining applications for international protection; there is a hierarchy of criteria to allocate responsibility for examining applications lodged by individuals in one EU Member State and then travelled to another. There is a rebuttable presumption that all states that apply the Dublin Regulation are safe and comply with the EU Charter of Fundamental Rights and the ECHR.
Among the various criteria listed in the Dublin 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 Regula- tion). To determine through which state a person entered, his or her fingerprints are taken upon arrival and entered into the Eurodac database (see Eurodac Regulation, (EU) No. 603/2013), which all states applying the Dublin Regulation can access. For example, if an asylum seeker arrives in country A and lodges an application for asy- lum 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 responsibility 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 to states having to examine an application, even if it is not their responsibility to do so under the Dublin Regulation.
Example: In N.S. and M.E. joined cases,[141] 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 Dub- lin 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 defi- ciencies 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,[142] 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.
3.1.7. Exclusion from international protection
Under EU law, Article 12 and 17 of the Qualification Directive, which build on Article 1 F of the 1951 Geneva Convention, contain provisions that exclude interna- tional protection for those persons who do not deserve it. These are individuals who have allegedly committed 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,[143] the CJEU provided guidance on how to apply the exclu- sion 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 prin- ciples 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 treat- ment or punishment is absolute, irrespective of the victim’s conduct, the 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,[144] 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.
3.1.8. Cessation of international protection
Under EU law, when the risk situation in a country has improved, Articles 11 and 16 of the Qualification Directive allow for international protection 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 Others[145] concerned the cessation of refugee status of certain Iraqi nationals to whom Germany had granted refu- gee 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 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.
The status of refugees and beneficiaries of subsidiary protection who have been subject to very serious harm in the past will not cease in case of change circum- stances, if they can invoke compelling reasons for refusing to avail themselves of the protection of their country of origin (Qualification Directive, Articles 11 and 16).
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.[146] 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.[147]
3.2. Collective expulsion
Under both EU and ECHR law, collective expulsions are prohibited. A collective expul- sion 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 objec- tive examination of each individual’s particular case.[148]
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,[149] 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 per- sonal circumstances of each member of the expelled group. In particular, prior to the applicants’ deportation, the political authorities announced that collec- tive 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 sta- tion 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,[150] the Italian authorities in operat- ing 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 pro-
visions and EU law concerning sea interventions and the duties of coast guards and flag ships, including in international waters where the state still had jurisdic- tion within the meaning of Article 1 of the ECHR.
Example: In Sultani v. France,[151] 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 case with the applicant, then several aliens being subject to similar decisions or trav- elling 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.
Example: In its decision in European Roma and Travellers Forum v. France,[152] the ECSR held that the administrative decisions, during the period under consider- ation, ordering Roma of Romanian and Bulgarian origin to leave French terri- tory, where they were resident, were incompatible with the ESC: as the deci- sions 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 account 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 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 applicant’s burden of proof is high.[153]
Example: In Mamatkulov and Askarov v. Turkey,[154] 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,[155] 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 ques- tion, there is no need to assess proportionality.[156]
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 residence for as long as those family members hold a right of residence.
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 irregular status in view of the host country’s needs, should be covered by the rules that already protect other foreign nationals from deportation.[157]
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 protec- tion 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 expel a long-term resident must be based on conduct that constitutes an actual and sufficiently serious threat to public policy or public security.[158]
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 categories of third-country nationals. According to Article 28 of the directive, they can only be expelled on grounds of public policy or public security.[159] In the case of permanent residents, the grounds for expulsion must reach the level of “serious grounds of pub- lic policy or public security”. As stated in Article 27 (2) of the directive, these meas- ures 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 affecting one of the fundamental interests of society”.[160] States must notify their decisions to the person concerned, including the grounds on which they are based (Article 30).
Example: In ZZ v. Secretary of State for the Home Department,[161] the CJEU dealt with the meaning of Article 30 (2) of the Free Movement Directive which
requires the authorities to inform the persons concerned of the grounds on which a decision to refuse the right of residence is based, unless this is contrary to the interests of state security. In determining whether the authorities can refrain from disclosing certain information on grounds of state security, the CJEU noted that there is a need to balance state security with the requirements of the right to effective judicial protection stemming from Article 47 of the Charter of Fundamental Rights. It concluded, that the national court reviewing the authori- ties’ choice not to disclose, precisely and in full, the grounds on which a refusal is based, must have jurisdiction to ensure that the lack of disclosure is limited to what is strictly necessary. In any event, the person concerned must be informed of the essence of the grounds on which the decision was based in a manner which takes due account of the necessary confidentially of the evidence.
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 Confederation 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.[162]
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).[163]
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 emphasised that the same criteria as those used for EEA nationals should apply when consider- ing a proposed expulsion of Turkish citizens who have established and secured resi- dence 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 a criminal conviction; according to well-established case law, derogations from the fundamen- tal 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.[164]
Example: In Nazli,[165] 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 move- ment 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 lia- ble 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,[166] 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. Sev- eral 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.
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 authorities must assess this risk independently of whether the individual may be excluded from protection under the 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 under the Return Directive, including under the Dublin 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 con- sequences 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 lack- ing or when information is presented which gives strong reason to question the veracity of the asylum seeker’s submissions, the individual must provide a satisfac- tory 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 coun- try (internal protection) (see Section 3.1.5). Alternatively, the receiving state may be able to protect him against such a risk (sufficiency of protection). 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 conduct of the individual involved (see Section 3.4.2).
Further case law and reading:
To access further case law, please consult the guidelines on page 249 of this hand- book. Additional materials relating to the issues covered in this chapter can be found in the Further reading section page 227.
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91. 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.
92. Turkey maintains a geographic reservation under Art. 1 (B) of the Convention, which restricts its obligations to people uprooted by events in Europe.
93. UNHCR (2011).
94. 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 C-57/09 and C-101/09 [2010] ECR I-10979, Bundesrepublik Deutschland v. B. and D., para. 77.
95. Directive 2011/95/EU, OJ 2011 L 337/9.
96. 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.
97. 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.
98. ECtHR, Saadi v. Italy [GC], No. 37201/06, 28 February 2008; ECtHR, Mannai v. Italy, No. 9961/10, 27 March 2012.
99. 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.
100. CJEU, Joined Cases C-71/11 and C-99/11 [2012], Bundesrepublik Deutschland v. Y and Z, 5 September 2012, paras. 72, 80.
101. CJEU, Joined Cases C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v. X, Y and Z v. Minister voor Immigratie en Asiel, 7 November 2013.
102. 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, Aboubacar Diakité 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.
103. The CJEU has also been asked to define the term ‘internal armed conflict’ in Aboubacar Diakité 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.
104. ECtHR, Bader and Kanbor v. Sweden, No. 13284/04, 8 November 2005.
105. ECtHR, Al-Saadoon and Mufdhi v. the United Kingdom, No. 61498/08, 2 March 2010.
106. ECtHR, H. and B. v. the United Kingdom, Nos. 70073/10 and 44539/11, 9 April 2013, para 91.
107. ECtHR, Salah Sheekh v. the Netherlands, No. 1948/04, 11 January 2007.
108. ECtHR, NA. v. the United Kingdom, No. 25904/07, 17 July 2008, paras. 114-117, 147.
109. ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, paras. 241-250, 293. For a more recent assessment of the situation in Somalia see ECtHR, K.A.B. v. Sweden, No. 886/11, 5 September 2013.
110. ECtHR, H.L.R. v. France [GC], No. 24573/94, 29 April 1997, paras. 43-44.
111. ECtHR, D. v. the United Kingdom, No. 30240/96, 2 May 1997.
112. ECtHR, N. v. the United Kingdom [GC], No. 26565/05, 27 May 2008.
113. ECtHR, S.H.H. v. the United Kingdom, No. 60367/10, 29 January 2013.
114. ECtHR, Babar Ahmad and Others v. the United Kingdom, Nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012.
115. ECtHR, Aswat v. the United Kingdom, No. 17299/12, 16 April 2013.
116. ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, paras. 267-292.
117. France, Conseil d’État, M. A., No. 334040, 1 July 2011.
118. See, for example, ECtHR, Muminov v. Russia, No. 42502/06, 11 December 2008.
119. ECtHR, S.F. and Others v. Sweden, No. 52077/10, 15 May 2012.
120. ECtHR, Saadi v. Italy [GC], No. 37201/06, 28 February 2008, para. 129.
121. 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.
122. ECtHR, Matsiukhina and Matsiukhin v. Sweden (dec.), No. 31260/04, 21 June 2005; ECtHR, Collins and Akaziebie v. Sweden (dec.), No. 23944/05, 8 March 2007.
123. ECtHR, Singh and Others v. Belgium, No. 33210/11, 2 October 2012.
124. ECtHR, I. v. Sweden, No. 61204/09, 5 September 2013.
125. ECtHR, S.F. and Others v. Sweden, No. 52077/10, 15 May 2012, paras. 68, 69.
126. 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, Nos. 8319/07 and 11449/07, 28 June 2011.
127. ECtHR, R.C. v. Sweden, No. 41827/07, 9 March 2010.
128. ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011, paras. 230-234.
129. ECtHR, Saadi v. Italy [GC], No. 37201/06, 28 February 2008.
130. ECtHR, A.A. v. the United Kingdom, No. 8000/08, 20 September 2011.
131. ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011.
132. ECtHR, Muminov v. Russia, No. 42502/06, 11 December 2008.
133. CJEU, C-175/08 [2010] ECR I-01493, Salahadin Abdulla and Others v. Bundesrepublik Deutschland, 2 March 2010.
134. CJEU, C-31/09 [2010] ECR I-05539, Nawras Bolbol v. Bevándorlási és Állampolgársági Hivata, 17 June 2010.
135. CJEU, C-364/11, Abed El Karem El Kott and Others, 19 December 2012.
136. ECtHR, Hida v. Denmark (dec.), No. 38025/02, 19 February 2004.
137. 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.
138. ECtHR, Sufi and Elmi v. the United Kingdom, Nos. 8319/07 and 11449/07, 28 June 2011.
139. See also ECtHR, M.Y.H. v. Sweden, No. 50859/10, 27 June 2013.
140. Regulation (EU) No. 604/2013, 26 June 2013, OJ 2013 L 180/31.
141. 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.
142. ECtHR, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011.
143. CJEU, Joined Cases C-57/09 and C-101/09, Bundesrepublik Deutschland v. B and D, 9 November 2010.
144. 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.
145. 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.
146. ECtHR, Tomic v. the United Kindgom (dec.), No. 17837/03, 14 October 2003; ECtHR, Hida v. Denmark (dec.), No. 38025/02, 19 February 2004.
147. 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.
148. For more information, see ECtHR, ‘Collective Expulsions’, Factsheet, June 2012, available at: www.echr.coe.int under Press/Factsheets/Expulsion.
149. ECtHR, Čonka v. Belgium, No. 51564/99, 5 February 2002; see also ECtHR, M.A. v. Cyprus, No. 41872/10, 23 July 2013, where the ECtHR did not find a violation of Article 4 of Protocol No. 4.
150. ECtHR, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012.
151. ECtHR, Sultani v. France, No. 45223/05, 20 September 2007.
152. ECSR, European Roma and Travellers Forum v. France, Complaint No. 64/2011, merits, 24 January 2012.
153. ECtHR, Othman (Abu Qatada) v. the United Kingdom, No. 8139/09, 17 January 2012, para. 233.
154. ECtHR, Mamatkulov and Askarov v. Turkey [GC], Nos. 46827/99 and 46951/99, 4 February 2005.
155. ECtHR, Othman (Abu Qatada) v. the United Kingdom, No. 8139/09, 17 January 2012.
156. The United Kingdom, EM (Lebanon) v. Secretary of State For The Home Department [2008] UKHL 64.
157. ECSR, Conclusions 2011, General Introduction, January 2012, statement of interpretation on Art. 19 (8).
158. Council Directive 2003/109/EC, OJ 2003 L 016/44, Art. 12.
159. In the absence of cases concerning third-country nationals, see the following cases concerning EU citizens, in which the Court has interpreted the notion of “imperative grounds of public security” under Art. 28 (3): CJEU, C-348/09, P. I. v. Oberbürgermeisterin der Stadt Remscheid, 22 May 2012, paras. 20–35; CJEU, C-145/09 [2010] ECR I-11979, Land Baden-Württemberg v. Panagiotis Tsakouridis, 23 November 2010, paras. 39–56.
160. 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.
161. CJEU, ZZ v. Secretary of State for the Home Department, Case C-300/11, 4 June 2013.
162. 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.
163. For information on a case with protection granted, see CJEU, C-34/09, [2011] ECR I-01177, Ruiz Zambrano v. Office national de l’emploi (ONEm), 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 and CJEU, C-87/12, Ymeraga and Others v. Ministre du Travail, de l’Emploi et de l’Immigration, 8 May 2013; see also CJEU, C-40/11, Iida v. Stadt Ulm, 8 November 2012.
164. ECJ, Case 36/75 [1985] ECR I-01219, Roland Rutili v. Ministre de l’intérieur, 28 October 1985, para. 27; ECJ, Joined Cases C-482/01 and C-493/01 [2003] ECR I-05257, Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land Baden-Württemberg, 11 September 2003, para. 67.
165. ECJ, C-340/97 [2000] ECR I-00957, Ömer Nazli, Caglar Nazli and Melike Nazli v. Stadt Nürnberg, 10 February 2000.
166. ECJ, C-349/06 [2007] ECR I-08167, Murat Polat v. Stadt Rüsselsheim, 4 October 2007.
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