National case summaries
The Constitutional Council decided on the criminal exemptions in favour of persons involved in the crime of assisting aliens to irregularly stay in a country. The first sentence of article L. 622-4 of the code of entry and stay of foreigners and the right to asylum (CESEDA) is unconstitutional as it must include not only the assistance to irregular stay in a country but also the assistance to the movement of aliens being in an irregular situation. The Council also specifies, in relation to the third paragraph of the above-mentioned article, that it is to be applied to any act assisting aliens to irregularly stay when motivated by humanitarian purposes. The Council hence enshrines the constitutional value of the fraternity principle.
Following on from a Rule 39 measure from the European Court of Human Rights preventing the transfer of the applicant to Bulgaria under the Dublin Regulation, the Tribunal ordered the police prefect to register the applicant's claim for asylum in France.
The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system.
In the lack of audiovisual recording of the interview, the Judge must set the appearance hearing, otherwise being the decree issued null and void for the breach of the adversarial principle.
In direct application of Art. 15 (2) of the Reception Conditions Directive, according to which asylum applicants must be given effective access to the labour market, the requirements of the Act Governing the Employment of Foreign Nationals (AuslBG) must be modified. The non-existence of a unanimous approval by the Regional Council pursuant to Art. 4 (3) AuslBG does not preclude the granting of employment permits to asylum applicants.
The case deals with the illegitimacy of denying the registration of an international protection request on the basis of the request being issued before a non-competent authority and lacking the criterion of “autonomous accommodation”.
The applicant appealed the Migration Court’s decision to dismiss his application for asylum on grounds of the availability of an internal protection alternative in the applicants home country of Afghanistan.
The Migration Court of Appeal granted the appeal as it was held that the question of internal protection can only be assessed after the court has made an individual assessment of the original grounds for protection invoked by the applicant.
The applicant, a Chinese citizen, feared, if she returned to China, she would be persecuted and exposed to torture by the Chinese Communist Government due to her Falun Gong activities.
The Refugee Appeals Board did not find that she was a particular profiled member of Falun Gong or that she was wanted by the Chinese Authorities as she left China legally notwithstanding that she had been detained several times for shorter periods and imprisoned for seven years during which she was exposed to torture. However, the Board found that the Chinese Authorities were aware of the applicant ‘s political positions regarding Falun Gong and the human rights situation in China due to comprehensive media activities and participation in demonstrations in Copenhagen. Therefore, after an overall assessment including the fact that the applicant had been imprisoned for seven years, the Board granted the applicant reugee status under the Danish Aliens Act Art. 7 (1).
Courts must establish the current situation of the region from which the complainant originates or which can be considered as an internal flight alternative and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of a Sunni Iraqi, the lower instance court did not sufficiently consider the complainant’s region of origin, the possibility of return to that region or the possibility of internal flight. Thereby the court violated the right to equal treatment among foreigners.
The complainant, a Somali Citizen and a Sufi Muslim from Jaameel Sheen, Hiiraan Region, Somalia, had been detained and tortured by al-Shabaab due to teaching English.
Based on a consistent account in accordance with a medico-legal report from a torture investigation and country of origin information the Board found the applicant profiled in relation to al-Shabaab.
The applicant was granted subsidiary protection under the Danish Aliens Act Art. 7 (2).