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Social rights of failed asylum seekers and Art. 3 ECHR

In an interesting decision, Hunde v. Netherlands, 05/07/2016, the Strasbourg Court elaborated on a question concerning fundamental social rights (housing and emergency social assistance) of a failed asylum seeker and their interplay with Art. 3 ECHR. The decision is of particular interest because it differentiates the status of a failed, and allegedly uncooperative, asylum seeker from that of an asylum seeker whose application is pending as was the case in M.S.S.

The decision contrasts with those adopted by the European Committee of Social Rights in 2014 in  Conference of European Churches (CEC) v. the Netherlands (complaint no. 90/2013) and in European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands (complaint no. 86/2012). Therein ECSR  found that the Netherlands had violated Article 13 §§ 1 and 4 of the European Social Charter, which guarantees the right to social assistance, and Article 31 § 2 of the Charter, the right to housing, by failing to provide adequate access to emergency assistance (food, clothing and shelter) to adult migrants in an irregular situation

Excerpts of decision:

1. General principles

45. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman degrading treatment or punishment irrespective of the circumstances and of the victim’s conduct (see, among many authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV). The prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).

46. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V; Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts)).

47. The Court has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see for example Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000‑XI).

48. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see, among other authorities, Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011; Gäfgen v. Germany [GC], no. 22978/05, § 89, ECHR 2010; Svinarenko and Slyadnev, cited above, § 114; and Georgia v. Russia (I), cited above, § 192).

49. The present case concerns the question whether the State had a positive obligation under Article 3 to provide the applicant – a rejected asylum-seeker at the material time – emergency social assistance. In that regard, the Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens (see, for example, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 113, ECHR 2012; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; and Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI). The corollary of a State’s right to control immigration is the duty of aliens to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence (Jeunesse v. the Netherlands [GC], no. 12738/10, § 100, 3 October 2014).

50. Aliens who are subject to expulsion cannot, in principle, claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State (see N. v. the United Kingdom [GC], no. 26565/05, § 42, 27 May 2008).

51. Moreover, Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home (see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001‑I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005).

52. In the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), the Court, attaching “considerable importance to the applicant’s status as an asylum-seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection” (§ 251), considered, in so far as relevant:

“252. … the Court must determine whether a situation of extreme material poverty can raise an issue under Article 3.

253. The Court reiterates that it has not excluded the possibility ‘that State responsibility [under Article 3] could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity’ (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009).”

2. Application of the general principles to the present case

53. The main thrust of the applicant’s complaint pertains to Articles 13 and 31 of the Charter and the decisions adopted by the ECSR on 1 July 2014 (see paragraph 37) which, in his view, lead to the conclusion that the denial of shelter and social assistance diminished his human dignity in a manner incompatible with Article 3 of the Convention. The Court acknowledges the importance of the economic and social rights laid down in the Charter and the issues raised in the two decisions by the ECSR. However, it cannot accept the applicant’s argument that the findings by the ECSR under the Charter should be considered to lead automatically to a violation of Article 3 of the Convention.

54. Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161). While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States (see A.S. v. Switzerland, no. 39350/13, § 31, 30 June 2015).

55. In the case at hand and during the period complained of, the applicant was not entitled to any social assistance in the Netherlands. Referring to M.S.S. v. Belgium and Greece (cited above), the applicant argued that the situation he found himself in was very similar to the situation in that case. However, there are crucial differences in that, unlike the applicant in M.S.S who was an asylum-seeker, the applicant in the present case was at the material time a failed asylum-seeker under a legal obligation to leave the territory of the Netherlands. Furthermore, even though the applicant’s loss of entitlement to legal residence in the Netherlands after the rejection of his asylum claim did not automatically affect his vulnerability as a migrant, the situation in which he found himself remained significantly different from that of M.S.S.. In the latter case, the relevant facts which had culminated in a finding of violation of Article 3, were the long duration in which the applicant had lived in a state of the most extreme poverty (the lack of food, hygiene and a place to live), and of fear of being attacked and robbed together with the fact that there had been no prospect of improvement. Furthermore, that situation was linked to his status as an asylum-seeker and, consequently, the applicant’s suffering could have been alleviated if the Greek authorities had promptly assessed his asylum application. By failing to do so the applicant was left in uncertainty.

56. Turning back to the present case, and emphasising once more that the applicant was a failed asylum-seeker at the material time, the uncertainty he found himself in was inherently different from M.S.S. in that it was not linked to the Netherlands authorities’ assessment of his asylum request. His asylum statement had already been examined and his asylum application refused, of which the applicant has not complained before the Court. Furthermore, it cannot be said that the Netherlands’ authorities have shown ignorance or inaction towards the applicant’s situation. After the applicant’s asylum proceedings had come to an end, the applicant was afforded a four week grace period to organise his voluntary return to his country of origin during which period he retained his entitlement to State-sponsored care and accommodation. Moreover, after he had overstayed this grace period, the applicant had the possibility of applying for reception facilities at a centre where his liberty would be restricted (see paragraph 31 above). The fact that admission to this centre was subject to the condition that he would cooperate in organising his departure to his country of origin cannot, as such, be regarded as incompatible with Article 3 of the Convention.

57. The Court also takes into account the fact that if it had been impossible for the applicant to return to his country of origin – either voluntarily or involuntarily – for reasons which cannot be attributed to him, he had the possibility of applying for a residence permit for persons who, through no fault of their own, are unable to leave the Netherlands (see paragraph 32 above). Nothing in the case file shows, however, that he has ever applied for such a residence permit. Nor has he ever contended at any stage during the domestic proceedings that he could not leave the Netherlands through no fault of his own.

58. The Court further observes that according to the general information provided by the Repatriation and Departure Service, returns to Ethiopia – voluntary or not – are possible, albeit with the alien’s cooperation if he or she is not in the possession of an original passport (see paragraph 39 above). The applicant submitted that he was released from immigration detention in July 2013 because an effective removal to his country of origin proved impossible, however without explaining why this was so. As the applicant was an undocumented migrant at the material time (see paragraph 6 above), his cooperation – in the form of expressing a willingness to return to Ethiopia and signing the request for a laissez-passer – was required in order to obtain a laissez-passer. However, in the applicant’s own admission, he did not wish to cooperate with the domestic authorities in organising his departure to Ethiopia.

59. The Court reiterates that there is no right to social assistance as such under the Convention and to the extent that Article 3 requires States to take action in situations of the most extreme poverty – also when it concerns irregular migrants – the Court notes that the Netherlands authorities have already addressed this in practical terms. In the first place, the applicant had the possibility of applying for a “no-fault residence permit” and/or to seek admission to a centre where his liberty would be restricted. It is furthermore possible for irregular migrants to seek a deferral of removal for medical reasons and to receive free medical treatment in case of emergency (see paragraph 30 above). In addition, the Netherlands have most recently set up a special scheme providing basic needs for irregular migrants living in their territory in an irregular manner (see paragraph 5 above). It is true that that scheme was only operational as from 17 December 2014, one year after the applicant had taken shelter in the Refuge Garage. However, it is inevitable that the design and practical implementation of such a scheme by local authorities of different municipalities take time. Moreover, the scheme was brought about as a result of a series of elements at the domestic level, including the applicant’s pursuit of domestic remedies in connection with his Article 3 claim. In these circumstances it cannot be said that the Netherlands authorities have fallen short of their obligations under Article 3 by having remained inactive or indifferent.

60. Considering the above, the Court finds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Link: http://hudoc.echr.coe.int/eng?i=001-165569

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Völkerrechtsblog

Der Blog des Arbeitskreises junger Völkerrechtswissenschaftler*innen

blogdroiteuropéen

blogguer différemment sur le droit européen

All for National Archaeological Museum Athens

The official blog of the museum with snapshots from its daily life

East Ethnia

Balkan politics and academics

Inforrm's Blog

The International Forum for Responsible Media Blog

ΣΥΓΧΡΟΝΑ ΘΕΜΑΤΑ

Τριμηνιαία Έκδοση Επιστημονικού Προβληματισμού και Παιδείας

UK Constitutional Law Association

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The most influential portal on European integration in the Western Balkans

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