Case summaries

The Committee, invoking the principle of non-refoulement and recognising gender-based violence as discrimination under Article 1 of the Convention, determined that removing the author to Greece would violate Articles 2 (c)-(f), 3, and 12 of the Convention due to the state party's failure to conduct an individualized, gender-sensitive, and trauma-informed assessment of the real and foreseeable risks the author faces as a woman experiencing gender-based violence.

Regarding the return of a Turkish applicant from Greece to Türkiye, her account constituted a prima facie case of refoulement, shifting the burden of proof to the Greek Government after evidentiary standards from secret detention cases were applied. The return of the applicant without any individual assessment or access to remedies, despite her asylum request and risk of ill-treatment due to alleged links to opposition movements in Türkiye, amounts to a violation of Articles 3 and 13 ECHR.

The applicant’s unregistered detention at a border guard station, without legal basis, information on the reasons for her arrest, or access to judicial review, as part of a broader Greek pattern of unlawful returns, amounts to a violation of Article 5(1), (2) and (4) ECHR. Although the applicant failed to prove a real risk to life or inhuman or degrading treatment during her removal process – where she travelled by an inflatable boat with other migrants –, the absence of an effective remedy to challenge such risks amounts to a violation of Article 13 ECHR.

States have a rigorous procedural obligation under Article 3 ECHR when assessing the risk of ill-treatment in a last minute asylum application submitted shortly before removal. Even where a subsequent application is made at a very late stage, domestic authorities cannot dismiss newly submitted documents as irrelevant due to lack of authenticity or translation without conducting any substantive assessment of their potential relevance in light of the applicant's individual circumstances and the general situation in the country of origin.

An applicant will not be subject to risk of ill treatment under Articles 2 and 3 of the ECHR, either because of the general security situation in Libya or the applicant’s previous work affiliated with the Gaddafi regime. The Court found that the situation in Libya was not such that the applicant would face ill treatment upon return and that the documents submitted to prove otherwise were of low evidentiary value.

The Committee found a violation of Article 3 of the Convention against Torture (non-refoulement), considering that the State party failed to address the individual circumstances and risk profile of the complainant, namely the fact that she was a woman of conscription age and a “failed asylum seeker”, when ascertaining whether her return to Eritrea would pose a risk of torture and inhuman and degrading treatment. Also, it observed that the State disregarded her asylum claim relying on the report’s findings, which did not meet the impartiality required as evidentiary proof.

The Return Directive precludes the adoption of a return decision when the person concerned is suffering from a serious illness and there are substantial grounds to believe that their pain would significantly increase if returned, because effective treatment is not available there. Although the Directive does not require Member States to grant a right to residence to such third-country nationals, when implementing the Directive, the right to private and family life must be respected, which includes, among other elements, access to healthcare and medical treatment.

Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.

In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of  serious harm.

In this case the Upper Tribunal provided that the Refugee Convention doesn’t offer protection from social conservatism and that there is no protected right to enjoy a socially liberal lifestyle. However, the Convention may be considered to apply where  ‘westernisation’ reflects a protected characteristic such as political opinion or religious belief, or if there is a real risk that the individual in question would be unable to mask his westernisation and persecutors would impute such protected characteristics to him. 

With regard to the granting of subsidiary protection, the existence of real risks to the rights under Art. 2, 3 ECHR must be examined, which includes the obligation to consider ongoing developments on the basis of available information. If a deterioration of the security situation is disregarded, this could be seen as arbitrariness.

To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR.  If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.

States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court.