Portugal - J v. Immigration and Borders Service, No. 263/18.5 BELSB, 11 July 2018
Keywords:
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The Court considered that the decision-maker should have had taken into consideration the applicant’s alleged vulnerable situation, and as a result ordered the case’s remittal to the Central Administrative Court of Lisbon so evidence could be collected on this.
Facts:
In 2017, the applicant requested international protection from Portugal, despite having already formulated a similar request in Germany.
The Immigration and Borders Service declared the inadmissibility of the applicant’s request a few days later. In his appeal, the applicant argued that the Immigration and Borders Service’s decision should be annulled since the decision-maker did not consider the applicant’s vulnerability.
Decision & reasoning:
Article 615º (1) CPC (Civil Procedure Code) states the need for annulment of a decision when the decision-maker does not rule on matters which should be taken in consideration in that particular case. This only happens if the parties argue a particular circumstance which is intentionally not assessed by the decision-maker.
In this case the Immigration and Borders Service’s decision-making process did not take in consideration the applicant’s alleged health issues, namely his suffering from a severe mental disorder.
The Court ruled that the existence of such mental disorder should be confirmed, as well as its gravity. However, the Immigration and Borders Service did not consider as proven that the appellant suffers from a serious mental disorder, and did not conduct any probationary steps to establish the truth, even though that was explicitly demanded by the applicant. This contravenes Article 111º (1) of the CPTA (Administrative Courts’ Procedural Code).The Immigration and Borders Service should not have declared the applicant’s vulnerable condition as not proven without conducting any investigation on that the existence of such a condition.
Consequently, the Court ruled in favour of the annulment of the decision on the inadmissibility of the applicant’s request for international protection.
It further ruled that the case should be remitted back to the Central Administrative Court of Lisbon for the collection of evidence on the applicant’s vulnerability. If, according to medical reports, the applicant’s mental disorder ends up being confirmed, the Court will need to assess if his/her transfer to Germany exposes him/her to a risk of deterioration of his/her mental health, as well as if any precautions can be taken to avoid that. Otherwise, the transfer order to Germany will need to be suspended, considering the applicant’s special circumstances.
Outcome:
The Immigration and Borders Service decision was annulled based on lack of probationary procedures conducted with the intention of proving the applicant’s mental disorder.
The Court ruled on the case’s remittal to the Central Administrative Court of Lisbon, so enough evidence on the applicant’s vulnerable condition can be collected.
Observations/comments:
The case was remitted to the Central Administrative Court of Lisbon for reconsideration.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Law 27/2008 |
| from 30 of June |
| Código de Processo Civil (Civil Procedure Code) |
| Código de Processo dos Tribunais Administrativos (Administrative Courts’ Procedural Code) |
Cited Cases:
| Cited Cases |
| CJEU - C-578-16, C. K. and Others, 16 February 2017 |
Other sources:
Domestic Case Law Cited
Portugal: STA, 17 November 2016, No 408/16
Other Sources Cited
Fernando Amâncio Ferreira, Manual dos Recursos em Processo Civil, 4ª Edição, 2003, pág. 50
Mário Aroso de Almeida e Carlos Alberto Fernandes Cadilha, Comentário ao Código de Processo nos Tribunais Administrativos, 2017, 4ª Edição, pág. 907