Case summaries
The Judge of the liberty and detention of the Nice Judicial Tribunal declared irregular the procedure during which the applicant was notified of his administrative detention more than an hour after the end of his police interrogation.
The Judge considered that the deprivation of liberty during that time had no legal foundation.
Article 6(1)(e) of the Schengen Borders Code does not preclude the issue of a return decision to a third-country national not subject to a visa requirement and who is present on the territory of a M.S. for a short stay if that national is suspected of having committed a criminal offence. Moreover, the Code does not impose an obligation to establish, in order to issue such a decision, that their conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned, as long as the principle of proportionality is respected.
Confinement of asylum applicants in an airport transit zone is contrary to Art. 5 § 1 (f) in the absence of any domestic legal basis for the applicants’ deprivation of liberty.
Confinement of asylum seekers left to their own devices in airport transit zones under the control of border authorities, without unimpeded access to shower or cooking facilities, outdoor exercise and medical or social assistance amount to degrading and inhuman conditions under Art. 3 ECHR if protracted for a long time.
When a national authority assesses the likely persecution of an applicant for religious purposes in case of return to his/her country of origin, the national authority must evaluate, inter allia, the way the applicant will live his/her faith in his/her country of origin. The Court found that because the applicant is of Hazara ethnic origin and he converted to Christianism in Switzerland, he might face persecution in violation of art. 3 ECHR in case of return to Afghanistan. The TAF did not assess with enough seriousness the consequences of the applicant conversion ex nunc.
In order to examine prohibitions of deportation, the Federal Office for Migration and Refugees (BAMF) has to consider the case of each family member even in cases of family associations separately whether deportation prohibitions exist. In this case, the risk assessment must be based on the assumption that a nuclear family living together in the Federal Republic of Germany will return to its country of origin as a family unit. This also applies if individual family members have already been granted a protection status or if national deportation prohibitions have been established.
Detention within the context of immigration must be lawful, not arbitrary and carried out in good faith. In this sense, the depriavation of liberty without a realistic prospect of removal is against the prevision of Article 5 § 1 of the Convention.
The Court decides that Greece is responsible for the examination of the applicant’s claim for international protection. The Court does not find that asylum procedures in Greece are flawed and that the applicant will be exposed to inhuman and degrading reception conditions. Moreover, neither the fact that the applicant’s sister is living in Germany nor the purpose of medical and psychological support in a Member State entitles the applicant under the Dublin Regulation to choose which country will examine his application for international protection.
The detention to facilitate the return is used if the return is considered as a reasonable prospect. The period in immigration detention must correspond only to the time which is strictly necessary for the enforcement of the return measure. The lack of a justification for the failure to enforce the return does not prove that the time in immigration detention was used effectively and that an extension could be needed.
It is necessary to make a proportionality assessment with consideration of both the gravity of the crime committed by the applicant and the interests of society, and the applicant’s individual rights, particularly his right to private and family life under Article 8.
The Federal Administrative Court failed to fully assess the impact that the measure of removal would have on the applicant. The evolution of the applicant's conduct since the occurrence of the crime, the applicant’s deteriorating medical condition, and his social, cultural and family ties in the host country were not sufficiently examined in the decision. The failure to assess the proportionality of the removal order and amounted to a violation of Article 8 of the Convention.