Case summaries
The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:
An Article 3 compliant assessment requires a full and ex nunc evaluation of a claim. Where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu.
When a Member State accepts a request by Germany to take charge of an applicant in accordance with Regulation (EC) No 343/2003 of 18 February 2003 (the “Dublin II Regulation”), the applicant may be transferred to that Member State even if he/she limits his/her application to subsidiary protection after the request to take charge has been accepted.
The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims. A further right to appeal remained with the Cypriot Supreme Court. The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.
The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR. The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.
The Court found that there had been a violation of Article 3 in relation to detention conditions at Tychero. There was no violation of Article 5(1) insofar as the detention was not arbitrary and was in accordance with a procedure prescribed by law, but there was a violation of Article 5(4) in relation to the ineffectiveness of the judicial review of detention conditions. Further, there was a violation of Article 13 read in conjunction with Article 3, because the Greek authorities had deported the Applicant to Turkey, without verifying whether his asylum claim was still pending.
In light of the Court’s previous jurisprudence relating to the conditions at Soufli detention centre, the Greek government has violated Article 3 ECHR on account of overpopulation and poor hygiene conditions, has violated Article 5 § 1 ECHR by not taking steps to carry out the expulsion in the five months of the applicant’s detention and did not provide an effective judicial remedy to challenge his detention pending expulsion, in violation of Article 5 § 4 ECHR.
This case is concerned with whether an appeal against the lawfulness of an asylum applicant’s detention was allowed. Thus the prejudicial question was formulated questioning whether the measure under article 8(3)(a-b) recast Reception Conditions Directive is valid with regards to the provisions in Article 6 Charter of Fundamental Rights of the EU (CFREU) subject to Article 5 European Convention on Human Rights (ECHR).
An application to establish the suspensive effect of a pending appeal pursuant to Section 80, Paragraph 5 of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) is not a legal remedy under Article 20, Paragraph 1 (d) of Council Regulation (EC) No 343/2003 of 18 February 2003 (“Dublin II Regulation”). A German court’s dismissal of a Section 80, Paragraph 5 application does therefore not suspend the 6-month deadline under Article 20, Paragraph 2 of the Dublin II Regulation for a member state of the European Union (“Member State”) to transfer an applicant to a Member State that has accepted (actually or implicitly) a request to take charge.
The applicant, an Iranian national, had fled Iran in light of the risks he faced there as a political dissident, and had been detained in Greece with a view to being expelled to Iran. The Court held that the Greek authorities had violated Articles 3 concerning his conditions of detention, 3 and 13 combined because of the lack of an effective remedy to complain about these conditions, the failings of the asylum procedure and the risk of being sent back to Iran, and 5(4) with respect to the inefficient judicial review of the detention.
This judicial review case quashed a Refugee Appeals Tribunal decision on the basis that the Tribunal member incorrectly made credibility findings regarding the applicant’s claim without a fully reasoned consideration of the country of origin information and a flawed reliance on inconsistencies in an Iranian Court document.