Case summaries

The court found that a prohibition of deportation under Section 60 (2) of the Residence Act (corresponding to Art. 15 (b) of the Qualification Directive) was established due to the existence of a general risk of persecution in case of return to Syria. The Administrative Court, in their assessment of risk, went far beyond the prevailing case law, particularly that of the High Administrative Courts.

A particular mode of persecution cannot be detected in Syria due to the arbitrariness and the juxtaposition of different intelligence services, whose impact cannot be predicted.

A further deterioration of the situation has occurred in light of recent developments and the bloody suppression of the protest movements.

Currently even persons who have not been politically active in exile are, with considerable probability, at risk of being arrested on return, not only for a short period - they are also at risk of torture and other inhuman treatment.

The Constitutional Court did not unreservedly uphold the judgment of the  Supreme Court. The Appellant in the case sought protection of his rights under Article 3 of the ECHR (and fundamental rights under Article 16(2) of the Constitution), which, in comparison with the other human rights and fundamental freedoms defined in the Convention, is characterised by an absolute and collective guarantee. In view of this, the Constitutional Court found that the standards of protection arising from Article 3 of the Convention (and Article 16(2) of the Constitution) should have been applied in the proceedings, even if such an obligation is not explicitly set out in the legislation, because these secure a greater range of constitutional rights and freedoms within the meaning of Article 154c(1) of the Constitution, and therefore take precedence over the law.

Restriction of the right to attend church is an act of persecution and therefore a violation of Art 10 of the Qualification Directive.

The Supreme Administrative Court (SAC) returned the case to the Administrative Court for reconsideration based on the applicants' change of circumstance (conversion to Christianity in Finland) which only became apparent during the appeal before the SAC.

This case considered exclusion from refugee status and found that criminal proceedings are not required for the application of Art 12.2 of the Qualification Directive or Art 1F of the Refugee Convention.

The applicant came from a district in Afghanistan, which according to up-to-date country of origin information, also contained areas judged as being safe. When considering internal protection for subsidiary forms of international protection, the decision maker must also consider whether or not the applicant is able to reach these areas safely. The roads could not be considered safe and the other presented routes were also not considered feasible for the applicant. As the applicant could not resort to internal protection elsewhere, he was granted a residence permit on the grounds of humanitarian protection in accordance with section 88 a § of the Aliens’ Act.

The case concerned an appeal against a decision of the Ministry of Interior (MOI) to refuse a claim for subsidiary protection status on the grounds that the applicant was excluded as a result of his activities, which were considered ‘contrary to the purposes and principles of the United Nations.’ The appeal was successful, the Supreme Administrative Court (SAC) held that exclusion clauses must be interpreted restrictively, that there must be ‘serious grounds to believe’ such acts were carried out and notwithstanding the exclusion clause, non refoulement obligations under Art 3 of the ECHR apply.

A foreigner who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity and in an objectively reasoned way, that there are specific facts which cause him to have a fear of persecution for reasons of race, religion, nationality, social group or political opinion. If such substantive claims have not been submitted, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited but these do not establish grounds for refugee status, then there is no obligation to give specific reasons for rejecting the application for asylum. The “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the UN High Commissioner for Refugees is non-binding in nature but contains “best practice” for the relevant authorities when examining asylum applications and, in that way, sets out “soft law”. Granting a residence permit on humanitarian grounds falls within the broad discretionary powers of the relevant authority; but it can, exceptionally, be obligatory if the foreigner would – should he be repatriated to the country of origin – be at risk of torture or other inhuman or degrading treatment or punishment.

This case considered whether or not members of the Judiciary could be considered "a particular social group". It was found that they could not. The applicant did not convince the Court that on her return to Russia she would risk an unfair trial or unjust deprivation of liberty as a result of false allegations of bribery and knowingly handing down wrong decisions in court. The Court of Appeal considered that conditions in Russian prisons in general are not so severe as to warrant international protection.

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.