Case summaries

The application by the Applicant for the assignment of a legal adviser for the appeal proceedings was rejected by the Asylum Court because it was late, as the Applicant had only submitted the application after the expiry of the one-month transition period. The Constitutional Court annulled the corresponding transitional regulation on grounds of unconstitutionality: a deadline of only one month was too short to deal with the lack of understanding of asylum seekers of the language and law.

An exclusion order was issued to the Applicant and therefore a measure within the meaning of the Returns Directive. Without undertaking an oral hearing, the appeals authority confirmed the issue of the exclusion order, but reduced its duration. In accordance with Art 47 Para. 2 of the Charter of Fundamental Rights of the European Union, the appeals authority was however obliged to undertake an oral hearing.

The Constitutional Court presents its opinion on the nature of the rights and principles contained in the Charter of Fundamental Rights of the European Union(CFRU) and on jurisdiction for the decision on questions of interpretation in connection with the CFRU. It gave an answer in the affirmative to the question of whether the CFRU, in particular Article 47 CFRU, is applicable in asylum proceedings if no such violation was found in the actual case at hand.

This case concerned the concept of ‘safe country’ within the Dublin system and respect for fundamental rights of asylum seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible Member State then subject to the sovereignty clause the State can check if another Member State is responsible by examining further criteria under the Regulation. This should not take an unreasonable amount of time and if necessary then the Member State concerned must examine the asylum application. 

According to the residence permit application, the Applicant, born in 1935, has various ailments and he is fully dependent on his daughter who lives in Finland and is a Finnish citizen.  In an interim order, the Administrative Court turned down the Applicant’s non-refoulement argument  and held that judgment would be made on the substantive issue at a later date.  While the substantive issue was still pending at the Administrative Court seeking a stay on the execution of the interim order so that he would not to be deported while the Administrative Court decided on the substantive issue (a ‘repeal’ application).  As according to national legal provisions, a repeal application can only be made on a judgment  which has entered into force, the repeal application was inadmissible. Administrative Court, the Applicant applied to the Supreme

Because the failure to accept the non-refoulement argument might render the appeal on the substantive issue de facto ineffective, in order to guarantee the Applicant’s legal protection, in exceptional circumstances there was reason to carry out a review to determine whether his appeal should be handled  by the Supreme Administrative Court without it being detrimental to the final decision under Section 58 of the Administrative Procedure Act and Section 199 Article 2 of the Aliens Act. 

Because the Asylum Court refused the appeal only one day after service of the ruling on the appointment of a legal advisor, the Applicant was not granted an appropriate period of time to use the legal advice and any representation in the proceedings and it was therefore made impossible for him to exercise his rights effectively in the proceedings.

In this case the Tribunal considered the general country situation in Somalia as at the date of decision for five applicants, both men and women from Mogadishu, south or central Somalia, Somaliland and Puntland. The risk of female genital mutilation (FGM) was also considered.

The right to an effective remedy under EU law does not require the specific preliminary decision to place an applicant for international protection under the accelerated procedure to be itself subject to judicial review, provided that this decision is reviewable as part of judicial consideration of the final substantive decision to grant or refuse protection.

Partly as a result of his detention, the foreigner's financial resources are limited. The obligation to pay €227.00 in court fees for the processing of an appeal therefore constitutes a major breach of the right to access to justice guaranteed under Article 47 of the Charter of Fundamental Rights of the European Union, amongst other provisions. The appeal should therefore have been examined on its merits despite the court fees not being paid.

A decision terminating the procedure is unlawful and it is not in the function of providing access to the asylum procedures and the protection of the principle of non-refoulement, if the Asylum authority immediately and automatically as soon as the applicant failed to appear for the personal interview, even though he was regularly summoned and informed of the consequences if he does not appear, issued a decision to close the case, without firstly carrying out reasonable activities within the reception centre in order to establish why the applicant did not attend the interview.

In the event that a national legal norm is not in compliance with EU law, the court does not suspend the procedure for assessment of constitutionality of the disputed provision, but ignores the disputed legal provision and directly uses a clear and unconditional provision of secondary EU law with a direct effect. The obligation to ignore the national norm in such cases also applies to administrative authorities.