Case summaries

This case concerns Art. 23 of Directive 2005/85/EC and the possibility of prioritising the processing of asylum applications by persons belonging to a certain category defined on the basis of nationality or country of origin. The case also deals with the right to an effective judicial remedy under Art. 39 of Directive 2005/85/EC and the concept of ‘court or Tribunal’ within the meaning of that article.

Despite his family ties, the Applicant was denied an extension to his residence document as he was regarded as a threat to public order and security.

The question was what emphasis had to be placed on the Union membership of the Applicant’s spouse and child of whom they had joint custody.

The expulsion of an asylum seeker after asylum proceedings lasting approximately eight years without any culpable delay by the Applicant, during which he established a family and also integrated well in other respects, infringes his right to a private and family life.

If a subsequent application for international protection is submitted, the administrative authority must evaluate whether the applicant has presented any new facts that, through no fault of the applicant, had not been the subject of examination in the previous proceeding. Otherwise, the application is inadmissible and the proceedings must be stopped.

This was the substantive hearing of a case in which leave to seek judicial review of a subsidiary protection decision was granted on the basis that (a) it was arguably erroneous to conclude that because State protection was available in respect of the actions of non-State agents who inflicted serious injury on the Applicant, the said injury could not amount to "serious harm;" and (b) The decision failed to consider whether, arising out of the previous harm suffered by the Applicant, compelling reasons existed to warrant a determination that she was eligible for subsidiary protection. The Applicant was successful on both grounds and the decision was quashed by the Court.

The case refers to an appeal to the Supreme Court brought by the appellant against the High National Court’s decision to deny asylum.

The appellant is a Nigerian national and claims to have left her country because of armed confrontations between the group she belonged to (the Massob) and other armed groups.After a demonstration organised by the Massob to demand freedom and independence for the group, the government retaliated against the demonstrators, killing several people.Therefore, she decided to flee the country with her husband and one year old daughter.During the crossing in a small boat from Morocco to Spain, her daughter died.On these grounds the Supreme Court recognised the appellant’s right to remain in Spain on grounds of humanitarian considerations.

Two main issues are addressed by the Court:

Is the Minister required to re-examine a negative credibility finding by the Office of the Refugee Applications Commissioner (ORAC) when such is disputed in the subsidiary protection application but has not been the subject of an appeal determination by the Refugee Appeals Tribunal (RAT) in the refugee status determination procedure?

Does Regulation 4(5) preclude the Minister from taking any steps in the preparation of a deportation order prior to a final determination of the subsidiary protection application?

Both issues are answered by the Court in the negative.

This case concerned the concept of ‘safe country’ within the Dublin system and respect for fundamental rights of asylum seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible Member State then subject to the sovereignty clause the State can check if another Member State is responsible by examining further criteria under the Regulation. This should not take an unreasonable amount of time and if necessary then the Member State concerned must examine the asylum application. 

The refusal to grant a right of residence to a third-country national who is a family member of a Union citizen must not lead in fact to the obligation for the latter to leave the territory not only of the Member State of which he is a national but also that of the Union as a whole.

The Supreme Administrative Court considered the application of the internal protection principle. The Court held inter alia that effective protection cannot be provided by non-governmental organisations which do not control the state or a substantial part of its territory.