Case summaries

This ruling concerned the scope of judicial review when reviewing compliance with the criterion of Article 10(1) for determining responsibility for examining an asylum application under Regulation 343/2003. The Court held that Art. 19(2) of the Regulation must be interpreted as meaning that, in circumstances where a Member State has agreed to take charge of an applicant for asylum on the basis of the Art. 10(1) criterion the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that Member State, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Art. 4 of the Charter.

The Court examined the complaints of a Somali national concerning her detention conditions in Malta (Article 3), which deteriorated her mental health and resulted in inhuman and degrading treatment.  She further alleged that her detention was in breach of Article 5 § 1, 2 and 4 (Right to liberty and security).

The Asylum Court violated the right of access to the courts by rejecting an appeal in a case where an application for family reunification had been submitted at an Embassy. The asylum authorities acted arbitrarily in assuming that there was no legal entitlement to a formal notification of the decision in writing on such an application.

The rules on safe third countries, according to which applications for international protection in the event of a threatened violation of Art 8 ECHR must not be refused on the basis of formal safety in another country, is to be applied similarly to the Dublin II Regulation. If the Applicant already has subsidiary protection in one Member State, in accordance with the Dublin II Regulation his application in a different State in which his son, who is a minor and entitled to asylum, is living, (in addition to the Applicant’s pregnant wife) must not be refused.  On the contrary, this State must make use of the right to assume responsibility for the examination.

On the basis of personal circumstances and improvements in the general security situation in Mogadishu, the Applicant would not be at risk of treatment contrary to Articles 2 or 3 ECHR if deported from Sweden to Somalia.

In order for subsidiary protection to be provided, the law requires not just a fear but a well-founded fear. This means that a fear of persecution must be real and not fictional. If the genuine nature of an appellant’s fear were to be accepted on the basis of an outline provided to the Respondent in proceedings to extend subsidiary protection, it would lead to a situation where almost all nationals of countries in which any kind of conflict was taking place - even a local one not directly affecting most of the population - would have to be regarded, without further grounds for acceptance, as persons in respect of whom there were serious grounds for believing that they would be exposed to a real risk of serious harm in the event of returning to the country of origin.

Dismissal of the Appellant’s claim that the findings of fact were incorrect beause the Respondent had failed to examine relevant grounds for assessing the  existence of serious harm from the perspectives listed under Section 2(f)(1) and (2) of the Asylum Act, and specifically the risk of execution.

As the Appellant did not claim, either during the administrative or the judicial proceedings (before the Regional Court), that criminal proeedings were under way against him in his country of origin, or that he faced the threat of execution, torture, inhuman or degrading treatment, the Respondent could not be criticised for approaching the hearing of evidence in relation to his claims concerning the bad security situation in his country of origin, and to that end had focused on assessing the security situation in the country of origin and had not dealt with the risk of execution in the country of origin.

The Minister based a subsidiary protection decision and deportation order examination on the premise that the Applicant was a Tanzanian national based on records that were provided by the UK Border Agency to that effect, in circumstances where the Applicant claimed that he was Somali; that the Tanzanian identity was false; and he claimed that two language reports which were supportive of his claim of Somali nationality and submitted in a separate application for a subsequent asylum claim should have been considered by the Minister in the making of his subsidiary protection and deportation decisions.

The High Court held that the language reports were added to the decision making process by virtue of being referenced in (but not attached to) correspondence concerning the subsidiary protection application and representations against deportation; that they were not considered by the Minister; and that the failure to do so breached the Applicant’s right to a fresh consideration of his credibility, and the Minister’s obligation to consider relevant facts.

Consequently the subsidiary protection decision and the deportation were quashed and remitted.

This case concerned the evidential standing in asylum hearings of linguistic analysis reports by the Swedish company SPRAKAB.

The International Protection Act's (ZMZ) definition of family members is not inconsistent with the Constitution of the Republic of Slovenia nor with Article 8 of the European Convention on Human Rights  (ECHR).

The ZMZ does not give the body that decides on international protection the discretion to broaden the circle of family members in special circumstances, nor are such obligations or discretions given by EU legislation or the ECHR.