In February 2019 the students of the Migration Law Clinic started two new projects. It has requested to be admitted as a third-party intervener in the following cases:
ECtHR complaint in case S.S. v Sweden (Appl no 43654/18)
The case concerns a young Afghan woman, who applied for asylum in Sweden. The application was reject. She complains that her return to Afghanistan would violate Art. 3 ECHR.
The ECtHR has communicated the case to the Swedish Government on 10 December 2018 and asked it the following questions:
1. In the light of the applicant’s claims, the documents which have been submitted and relevant country information on Afghanistan, would she face a risk of being subjected to treatment in breach of Article 3 of the Convention if the deportation order were enforced (see, inter alia, Saadi v. Italy [GC], no. 37201/06, § 124-133, ECHR 2008; F.G. v. Sweden [GC], no. 43611/11, §§ 111-118, 23 March 2016; J.K. and Others v. Sweden [GC], no. 59166/12, §§ 79-98, 23 August 2016; and A.M. v. the Netherlands, no. 29094/09, §§ 77-80 and 87, 5 July 2016)?
In particular, would she face a risk of being subjected to treatment in breach of Article 3 of the Convention on account of the situation in Afghanistan for women who lack the support of a male network and for women who are considered to have transgressed social or moral norms, taking into consideration, inter alia, the circumstances surrounding her marriage, including the fact that she allegedly never lived with her husband, her current views on remaining in the marriage, the period of time she has spent in Sweden and the practical availability of a male network that would be willing and able to support her upon return?
2. Would the applicant face a real risk of a flagrant violation of Article 9 if the deportation order were enforced (see, inter alia, Z. and T. v. the United Kingdom (dec.), no. 27034/05, 28 February 2006; and Razaghi v. Sweden (dec.), no. 64599/01, 11 March 2003)?
ECtHR complaint in case M.T. and others v Sweden (Appl no 22105/18)
This case concerns a Syrian minor boy, whose request for family reunification with his mother and brother was refused. The reason was a temporary law adopted in Sweden which provided that persons in need of subsidiary protection do not have the right to family reunification (while refugees do have that right). The boy and his family members complain that their right to family life in conjunction with the right to non-discrimination has been violated.
The ECtHR has communicated the case to the Swedish Government on 20 December 2018 and asked it the following questions:
1. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention? In particular, have the domestic authorities engaged in a thorough balancing of the interests in issue, particularly taking into account the children’s best interests, and put forward relevant and sufficient reasons for their decisions (see, for example, El Ghatet v. Switzerland, no.56971/10, 8 November 2016; Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, 1 December 2005; and I.A.A. and Others v. the United Kingdom (dec.), no. 25960/13, 8 March 2016)?
2. Have the applicants suffered discrimination contrary to Article 14 of the Convention read in conjunction with Article 8 (see, for example, Biao v. Denmark [GC], no. 38590/10, 24 May 2016; and Hode and Abdi v. the United Kingdom, no. 22341/09, 6 November 2012)?
In October 2018 the students of the Migration Law Clinic worked on the following two projects:
Family ties and family life
This project concerns a series of cases in which the Dutch Council of State has ruled that there was no right to family reunification of a father with his biological child(ren), who was/were born out of wedlock (Council of State 18 July 2018, ECLI:NL:RVS:2018:2366, ECLI:NL:RVS:2018:2466, ECLI:NL:RVS:2018:2467, ECLI:NL:RVS:2018:2469 and 10 September, ECLI:NL:RVS:2018:2940). The Council of State considered that there were no factual family ties between the father and the child. The question is whether the refusal of family reunification on this ground in in conformity with Article 8 ECHR and EU law.
This project was supervised by Betty de Hart and Pieter Boeles
Rejection of visa on the basis of an objection by another EU Member State
This project concern several cases, in which a short term visa for the Netherlands was rejected automatically on the basis of an objection by an (unknown) EU Member State. The question addressed in this project is of this automatic refusal is in conformity with EU law, specifically the Visa Code and Articles 41 (the right to good administration) and 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights. Are Member States required on the basis of the principle of mutual trust to automatically accept the objection of another EU Member State? Is the right to an effective remedy respected, taking into account that the applicant does often not know which Member State objected against the grant of a visa nor for what reasons the objection was made. On March 2019 the district court of Haarlem referred preliminary questions in these cases.
This project was supervised by Evelien Brouwer and Pieter Boeles
The Migration Law expert opinions can be found here.
If you have suggestions for cases or topics for the Migration Law Clinic, you can contact the Clinic coordinator (firstname.lastname@example.org). See also under ‘For Clients’.
We will take new projects from February 2019