Cjeu case summaries

A Member State cannot rely on the rebuttable presumption under Articles 36 and 37 of the 2013 Asylum Procedures Directive (APD) in respect of the safe country of origin concept and subsequently find the application to be manifestly unfounded in accordance with Article 31(8)(b) without having fully implemented and complied with the procedures under the APD relating to the designation of countries as safe countries of origin.

Moreover, a Member State may not consider an application for asylum as manifestly unfounded under the APD due to the insufficiency of the applicant’s representations. 

The case concerned the application of a take back request under the the Dublin III Regulation where an asylum applicant has lodged multiple asylum applications in two different Member States and is the subject of a European Arrest Warrant.

Member States can issue a return decision together with, or right after, a negative decision on an asylum application at first instance, as long as they ensure that all judicial effects of the return decision are suspended during the time allowed to appeal and pending that appeal.

During that period, and despite being subjected to a return decision, an asylum applicant must enjoy all the rights under the Reception Conditions Directive. The applicant can rely upon any changes in circumstances affecting his claim that came up after the return decision, before the appeals authority.

Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.

Article 26(1) of the Dublin III Regulation precludes the issuance of a transfer decision by the determining Member-State until the requested Member-State implicitly or explicitly accepts the take charge/back request.

Requests for family reunification must be examined even if the third-country national, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban. Whether there is a relationship of dependency between the third-country national and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis.

The fact that a person has been the subject, in the past, of a decision excluding him from refugee status cannot automatically permit the finding that the mere presence of that person in the territory of the host Member State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. A case-by-case assessment is necessary before a measure based on grounds of public policy or public security is adopted. This assessment includes weighing the threat against the protection of the rights of EU citizens and their family members.

Similarly, in order to adopt an expulsion decision with due regard to the principle of proportionality, account must be taken of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.

The fact that a person cannot be repatriated under Article 3 of the ECHR does not imply that that person should be granted a leave to reside in the host country by way of subsidiary protection under Directive 2004/83. The person concerned is eligible for subsidiary protection only if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate health care.

An asylum applicant who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must still be regarded as a “minor” for the purposes of that provision.

In assessing the credibility of a sexual orientation-related claim, personal circumstances have to be taken into account. That a person is not able to elaborate on his awareness and acceptance of his sexual orientation, is not sufficient to conclude that the applicant’s story lacks credibility, when the personal circumstances that explain this inability are considered credible.