Case summaries

The Administrative Court considered the proposed removal of the applicant from the UK to Italy under the Dublin Regulation. In applying MSS v Belgium and Greece and KRS v UK to applications to resist removal under the Dublin Regulation on human rights grounds, a system which protects the rights of asylum seekers should be presumed in other EU member states. The evidence must reveal a systemic failure on a significant scale for the presumption to be rebutted.  Particular weight would be given to the public statements of UNHCR and other intergovernmental bodies with appropriate mandates.  Little or no weight would usually be given to expert reports in such cases.

When establishing the necessary “density of danger” in an internal armed conflict within the meaning of Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive, it is not sufficient to quantitatively determine the number of victims in the conflict. It is necessary to carry out an “evaluating overview” of the situation, which takes into account the situation of the health system. However, this issue was not decisive in the present case, as the applicant would only face a low risk of being seriously harmed.

When refusing a claim for asylum the decision-maker must establish beyond reasonable doubt that the applicant's fear is not well founded.

The Supreme Administrative Court considered the application of the internal protection principle. The Court held inter alia that effective protection cannot be provided by non-governmental organisations which do not control the state or a substantial part of its territory.  

M’s detention pending deportation, for over 2 years and 8 months, was processed without sufficient safeguards against arbitrariness and delay, resulting in four separate violations of the Convention.

Subsidiary protection was granted to the applicant due to the lack of his family ties in Afghanistan on the basis of the risk of serious harm (torture and inhuman treatment).

This case concerned the meaning of the term “serious harm” in the Qualification Directive (as transposed into Irish law). The Irish state refused to grant the applicant subsidiary protection on the basis that the term imputes the absence of State protection, if the fear of harm is from non-state actors. The applicant argued that this was incorrect.

Refugee status was granted to a Kosovar family of Roma origin based on their ethnicity being recognised as a particular social group. The court found that they faced a risk of persecution and that state protection was either unavailable or ineffective.

Prior to the ECtHR’s decision in MSS v Greece and Belgium, the Austrian Asylum authorities generally only used the sovereignty clause in relation to “Dublin cases” concerning Greece and vulnerable persons. The Constitutional Court refused the appeal on the basis that the applicant did not fall within a vulnerable group and because the Asylum Court’s decision was taken prior to MSS v Greece and Belgium.

The Palestinian applicant’s claim was rejected by the authorities as he was not found to be credible. However, the court held that the security situation in the West Bank needed to be reexamined on the basis of the latest country of origin information to assess if the applicant would face a risk of torture or inhuman treatment upon return.