Case summaries

The ECtHR declared inadmissible the complaints brought by a Senegalese national who had unsuccessfully applied for asylum in Spain due to his fear of being persecuted in his country of origin on the grounds of his sexual orientation. The complaints were considered premature since the Audiencia Nacional had annulled the administrative decision rejecting his asylum application and the asylum procedure had started afresh. 

The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.

The Secretary of State had appealed the decision of the FTT (supported by the Upper tribunal) on several grounds of error in law. The Court upheld the tribunal on the issue of whether they had considered the gravity of the respondent’s offences  (section 72 of the 2002 Act); but found that the tribunals had indeed erred when considering the application of Article 1C(5) of the Refugee Convention, and on the applicability of Article 8 ECHR. They consequently remitted the case of MM’s deportation to the Upper Tribunal for re-examination in its entirety, based on these errors in the previous decisions. The statement of the referral left open for the respondent the possibility of an appeal on the basis of Article 3 ECHR. 

The applicant is an ethnic Somali and a Sunni Muslim belonging to the Bon Clan from Mesegawayn in the Galgaduud Region, Somalia. The applicant was originally in 2014 granted subsidiary protection by the Danish Immigration Service under the Danish Aliens Act Art. 7 (2). In February 2017, the Danish Immigration Service revoked the applicant’s subsidiary protection.

The account of the applicant regarding his original application was rejected by the Board due to a lack of credibility.

The majority of the Board found probable that the applicant’s daughter if returned to Somalia would be at risk of forced circumcision.

As the primary applicant, the child was granted refugee status under the Danish Aliens Act Art. 7 (1). Consequently, the cohabiting parents were granted refugee status under the Danish Aliens Act Art. 7 (1) with reference to the UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1 (A) 2 and 1 (F) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, published on 22 December 2009 para. 9.

The Federal Supreme Court rules that the separate detention of families with minor children and the placement in a children’s home violates the right to family life in Art. 8 ECHR, if less intrusive measures than detention have not been taken into consideration.

Following the careful examination of International, European and domestic law, the Court concluded that the grant of refugee status supersedes any order made by a Family Court (regarding the return of the child to Pakistan), because it is the Secretary of State for the Home Department  that is the entrusted public authority to deal with asylum matters.  However, were the Family Court to discover new facts, the relevant public authority would be responsible, in principle, under the tenets of UK Administrative Law to review their decision. 

Every country has the right to control the entry and residence of aliens in its territory. Withdrawal of subsidiary protection from individuals convicted of serious crimes and subsequent expulsion does not violate their right to family life under Article 8, when there are alternative means of communication, non-severed cultural ties with the motherland and a reasonable prospect of return after the entry ban expiry.

The Judge of liberty and detention of the Toulouse Appeal Court considered that an extension of the applicant’s administrative detention would mean subjecting her to imminent forcible return to her country of origin, which was not compatible with articles 3 and 13 ECHR since an appeal against a decision rejecting the applicant’s asylum application was still pending and with sufficient grounds.

As a result, the Judge held that there was no reason to extend the duration of the applicant’s administrative detention.

Lack of prompt investigation of ill-treatment complaints may amount to a procedural violation of Article 3 ECHR. Detention conditions should follow certain standards and individuals should be kept in suitable establishments with enough allocated space.