National case summaries

The Appellant applied for asylum in Sweden on the basis of being a refugee as per his registration at the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Alternatively the appellant argued that his need for protection should be judged against his previous residency in in Syria. The main issue faced by the court was whether the appellant’s normal place of residence should be considered as Syria or Algeria, and thus against which of these two countries the appellant’s need for protection should be judged.

The Court deemed Algeria to be the appellant’s normal place of residence based on his formal and non-formal ties to the country as well as his 18 months stay in the Algeria prior to coming to Sweden. Based on this the court did not deem the appellant to have the required need for protection and denied his appeal.

For the assumption of reasonable internal flight alternatives, a case-by-case assessment must be made on the basis of sufficient findings about the expected situation of the asylum applicant in the country of origin. On the basis of general information on the situation in the country of origin, a young, healthy man with school education and professional experience and who is familiar with the local conditions, can in principle be expected to resettle in Kabul.

Following on from a request by several French NGOs to annul Decree No. 2017-430 of 29 March 2017 containing various provisions relating to the allowance for asylum seekers, the French Council of State annuls Article 6(2) of the Decree since it does not set in the Code on the entry and residence of aliens and the right of asylum (CESDA) an additional daily amount sufficient to enable adult asylum seekers who have accepted an offer of care, but to whom no accommodation place can be offered, to have accommodation on the private rental market.

To not allow young adults who have been refused asylum to terminate their studies deprives Article 8 ECHR of all weight, an Article which protects an individual’s professional training and personal development.  Even if the right to stay of a student is not protected by Article 8, the termination of a qualifying training which is on the horizon falls under the scope of private life within the ECHR. Therefore, the transfer of the applicant to a return centre would prevent her from finishing her schooling, ruining her 7 years of studies and would constitute a harm difficult to repair.

Where an individual is detained with a view to his removal and an Article 3 violation is alleged if the applicant is returned, it is for the Court to rule on the plea and thus assess the lawfulness of the decision to detain.

In the light of the ECtHR jurisprudence on Article 3 ECHR and country of origin information on Sudan the Belgian authorities had to rigorously verify if the applicant would risk being subjected to treatment contrary to Article 3 ECHR before issuing the order to leave the territory, which includes giving the applicant an effective opportunity to be heard. This applies regardless of whether the applicant had applied for asylum or not. 

Law 12/2009 establishes a special guarantee for applications for international protection filed at the border, providing that legal assistance is mandatory at the time of formalising the request, and has to be provided even if the applicant does not ask for it or rejects it.

Moreover, communication must be in the language preferred by the applicant unless there is another language that he understands and in which he is able to communicate clearly.

The three-month time limit for take back requests, as prescribed by Article 21(1) of the Dublin III Regulation, will apply as soon as the competent authorities of the relevant Member State have been informed, with certainty, of the fact that international protection has been requested. Where certain responsibilities for the registration of applications have been delegated to a competent legal entity, the authorities will be deemed to have been so informed once the legal entity in question has made a written record of the applicant’s intention to claim asylum. 

The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.

The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.

The Regional Administrative Court of Upper Austria requests a preliminary ruling of the CJEU concerning the interpretation of Article 29 Directive 2011/95/EU in the context of social assistance for persons entitled to asylum with a temporary residence permit.

1) Must Article 29 Directive 2011/95/EU, entitling persons subject to international protection to the same level of social assistance in the Member State as nationals of this Member State, be interpreted as fulfilling the conditions for direct effect as set out in the CJEU’s jurisprudence?

2) Must Article 29 Directive 2011/95/EU be interpreted in the way, that it opposes national legislation that provides for persons with a temporary residence permit the same level of social assistance as for persons falling under subsidiary protection, while persons with a permanent residence permit are allowed to the social assistance provided for nationals of the Member State concerned?

The applicants appealed the decision to deny family reunification and family extension in relation to the refugee status of their daughter. The Administration denied this claim based on the fact that the applicants have a different nationality than their daughter, which would contravene the requirement established in article 40.a) of Law 12/2009. Article 41 of said Act, however, addresses this specific situation; However, the requirement of developing this provision by regulation had not been complied by Spain. The Court assesses whether this article should be applicable in the current case, despite not presenting the requirement of regulation, and concludes that the similarity of the wording of articles 40 and 41 is enough as to deem the latter applicable.