Case summaries

Termination of an applicant’s international protection status (ie where there is a change or termination of protection grounds) must be examined against the principle of non-refoulement, which ensures the right to a fair and efficient procedure in which the Asylum authority assesses if non-refoulement would be violated where protection ceases.

It results from the principle of non-refoulement that the applicant in proceedings on termination of subsidiary protection must have the possibility to state all the reasons for which subsidiary protection should not cease.

In the process of renewal of subsidiary protection all the guarantees provided by Article 18 of the Constitution (Prohibition of Torture) should be respected.

Legislation which limited the assessment of the competent authority in the subsidiary protection renewal procedure only to the grounds based on which an individual has been granted subsidiary protection, is inconsistent with the right set out in Article 18 of the Constitution.

The Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively) when examining a Dublin transfer. A possible breach can be linked to personal circumstances of the asylum seeker and does not necessarily have to be caused by a systemic failure of the asylum system in the receiving country. A Dublin transfer is forbidden if there is a real risk of a breach of Art. 3 ECHR.

A single mother and her five minor children must be considered as particularly vulnerable and cannot be transferred from Austria to Hungary.

An Applicant’s interest in remaining in a Member State prevails over the public’s interest in deporting the Applicant to the Member State in which the Applicant first sought asylum if there is a predominant degree of likelihood that the Applicant will be subject to inhuman or degrading treatment in the other Member State (e.g. because of significant capacity problems and a change to its asylum law).

The Austrian asylum authorities have to consider accurately and comprehensively the changes in the legal situation and the development of the actual situation of asylum seekers in Hungary when deciding on a Dublin transfer to this country.

The Court expressed doubts as to whether it is constitutionally permissible to base the withdrawal of subsidiary protection on a “final conviction of a crime” without taking the circumstances of the individual case into account. The Austrian provision might not be in line with the requirements as set out by the European Union Directive 2004/83/EC and might therefore be unconstitutional.

If the applicant for international protection claims that there are flaws within the asylum procedure of a responsible Member State (in line with Article 3 of the Dublin III Regulation), the examining state is still under an obligation to investigate the systematic procedural flaws in line with the reversed burden of proof. 

A decision refusing refugee status is unlawful and arbitrary, if it is solely based on the lack of a “western orientated” lifestyle of the applicants in the country of residence and disregards the lack of educational opportunities in the country of origin. Furthermore, such determination violates the right to equal treatment of foreigners with each other.

The case examined the allegations of an Afghan national that his isolated living condition in the detention centre of Otopeni in Romania constituted inhumane treatment, in violation of article 3 of the Convention. He further alleged a violation of Article 5 para 4 with regards to his right to an effective remedy to challenge the effectiveness of his detention. In addition, he complained of an excessive time period in detention (more than a year). 

The presumption that Italy remains in compliance with its EU and International Law obligations related to the reception and integration of asylum seekers and Beneficiaries of International Protection has not been rebutted. Asylum seekers and BIPs suffering from severe psychological trauma can be returned to Italy with no real risk of breaching article 3 ECHR, or 4 CFREU, since the Country's reception capacities have not been exceeded, while effective medical treatment is available under the same terms as to Italian nationals.

The Act on International Protection (AIP) does not provide for a legal basis to deprive an asylum applicant of their liberty (which is the case when the applicant is placed in a closed centre for irregular migrants, termed the “Centre for Foreigners”), but only for the restriction of movement (which can be the case when the movement is restricted to the area of the reception centre for asylum seekers).