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Communicated cases against Poland (application no. 54029/17), the Netherlands (application no. 39513/20) and Russia (application no. 8818/20)
Date:
Friday, January 22, 2021
- Communicated case against Poland
The case of Sherov v Poland (application no. 54029/17) concerns four applicants from Tajikistan. In the period from December 2016 to January 2017, each of the applicants travelled to Polish-Ukrainian border crossings on numerous occasions. Each time they expressed a wish to lodge applications for international protection and they were turned away for not having the necessary documentation for entry. When the applicants presented themselves at the border crossing at Medyka on 1 February 2017 and expressly requested international protection on account of their risk of political persecution, their lawyer was denied access to them and their case files. Subsequently, all four were sent back to Ukraine. The applicants sent appeals against the refusal of entry via post indicating that they wished to apply for international protection. The refusal decisions were upheld by the National Border Guard and a subsequent appeal was dismissed by the Warsaw Regional Administrative Court. On 20 September 2018, the Supreme Administrative Court quashed the lower court’s judgment and the decisions of the National Border Guard in the case of Mr Saygoziev. However, the Court ultimately decided to dismiss proceedings due to the fact that Mr Saygoziev was no longer present at the border. Similarly, proceedings concerning the refusal of entry into Poland for the other applicants were discontinued because they were no longer at the border.
The applicants brought complaints to the ECtHR under Article 4 of Protocol No. 4, Article 3 ECHR and Article 8 ECHR.
- Communicated case against The Netherlands
The case of Namahoro Francine Kamaliza v the Netherlands (application no. 39513/20) concerns an applicant from the Democratic Republic of Congo (DRC) who was granted asylum in the Netherlands. In December 2015 she filed an application for family reunion, based on Article 8 ECHR, in respect of her four minor siblings (aged 13, 10, 8 and 5 at that time), who had also fled the DRC and were staying in Uganda without a residence permit, and for whom the applicant was providing financial and emotional support.
With the approval of the applicant, the immigration authorities modified the application into an application for asylum-related family reunion (nareis), a special type of family reunion in Dutch law. For this type, different conditions for eligibility apply than for family reunion based on Article 8 ECHR: a person who has been granted asylum in the Netherlands' may apply for asylum-related family reunion in respect of his or her (foster) children, but not in respect of his or her siblings. As the applicant submitted that she had become responsible for her siblings and had taken care of them after the murder of their parents and elder sister in 2012, the immigration authorities regarded her as ‘foster mother’ when examining the request.
However, the application was rejected as the authorities found that it was the applicant’s grandmother – who had come to live with the applicant and her siblings after the death of their parents (and who had also been murdered in 2013) – who should be considered as the children’s foster mother. Appeals against this decision were unsuccessful.
The applicant complains under Article 8 ECHR that the rejection of her application for family reunion constitutes a violation of her right to respect for her family life.
By consequence, the European Court of Human Rights asked the parties whether there is family, under Article 8 ECHR, between the applicant and her minor siblings. If that is the case, the Court asks whether Article 8 ECHR imposes a positive obligation on the Netherlands authorities to allow the applicants and her siblings to enjoy family life on its territory. Finally, it is asked whether, when examining the applicant’s request for family reunification, the competent authorities took account of the applicant’s and her siblings’ vulnerability and their particularly difficult situation.
- Communicated case against Russia
The case of M.A. and others v Russia (application no. 8818/20) concerns several Syrian nationals, who, on various dates, legally arrived in Russia, but overstayed the period of their legal residence. In 2019-2020, they were apprehended by the Russian immigration authorities and were found to be in breach of immigration regulations by the domestic courts, who ordered their administrative removal from Russia to Syria. In February and March 2020, the Court, under Rule 39, indicated interim measures to the Russian Government staying the applicants’ removal to Syria.
The applicants complain under Articles 2 and 3 ECHR that they would face a real risk of being subjected to death and/or ill-treatment in the event of their removal to Syria.
By consequence, the ECtHR asks, whether, in case of the applicants’ removal to Syria, they would face a real risk of death or ill-treatment there, in breach of Articles 2 and 3 ECHR. Furthermore, it is asked whether the Russian authorities adequately assessed the general and individualised risks under Articles 2 and 3 ECHR in case of their return to Syria. Finally, the Court asks about the current security situation in Syria: do the applicants have any internal flight alternative in case of their involuntary return there.
This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.
Keywords:
Family reunification
Family unity (right to)
Inhuman or degrading treatment or punishment
Internal protection
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