Case summaries

This is the subsequent Supreme Court ruling following the preliminary reference ruling by the CJEU in C-604/12 in relation to the examination of subsidiary protection within the asylum procedure in Ireland. The case also addresses the legality in EU law of the two stage procedure in Ireland and the lack of a single asylum procedure.

This case concerns the use of s. 13(6) findings under the Refugee Act as amended and the issues surrounding depriving an applicant of an oral hearing on the basis of their delay in claiming asylum. The Court rules that the Minister has discretion to apply s.13(6) but it must be proportionate and reasonable. 

Section 62 subsection 3 first sentence No. 5 of the German Act of the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act) does not comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013 which defines ‘risk of absconding’ as the existence of reasons in an individual case, which are based on objective criteria defined by law. Section 62 subsection 3 first sentence No. 5 of the Residence Act names ‘risk of absconding’ as a reason for detention but lacks the required objective criteria to determine the existence of the ‘risk of absconding’. Therefore according to the current legal situation in Germany detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 cannot be based on the detention reason ‘risk of absconding’.

The detention reasons named in Section 62 subsection 3 first sentence No. 2 and No. 3 of the Residence Act comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013. Detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 can be based on these provisions.

The case considered an application against the decision of the Secretary of State denying the Claimants a right of in-country appeal against the removal of the Claimants to Italy under the Dublin Regulation. The Claimants argued that their removal to Italy would expose them to a real risk of a breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The court found that there was no evidence to rebut the presumption that Italy would comply with its obligations under EU laws or of special vulnerability in the personal circumstances of any of the Claimants, to support the assertion that Article 3 of the ECHR would be breached by the Claimants’ removal to Italy. 

The case concerns the interpretation of Directive 2004/83 and clarifies that the Irish legislation requiring seekers of international protection to follow two separate procedural stages: application for refugee status, and in case of refusal, application for subsidiary protection, is not contrary to EU law if the two applications can be introduced at the same time and if the application for subsidiary protection is considered within a reasonable period of time.

The right to good administration includes the right of any person to have his or her affairs handled impartially and within a reasonable period of time.

Although the decision and length of Greek detention of asylum seekers was justified and proportionate, the conditions of the Venna detention centre did not comply with Article 3 and there was no effective review of the lawfulness of their detention.

The return of a Pakistani national of the Ahmadiyya religion to Pakistan would violate Article 3. The French authorities had wrongly rejected the Ahmadiyya Applicant’s credibility, which is supported by evidence of prosecution by the Pakistani authorities for blasphemy.

A determination must disclose clearly the reasons for a tribunal's decision.  If a tribunal finds oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it is necessary to say so in the determination and for such findings to be supported by reasons.  A bare statement that a witness was not believed or that a document was afforded no weight is unlikely to satisfy the requirement to give reasons.

It is impossible to advise the Applicant to request the protection of public bodies in a situation in which the public bodies obviously discriminate against a certain religious group. When examining the alternative option of internal relocation, it is necessary to assess the legal and factual availability in terms of the circumstances of the Applicant. It is impossible to build the protection proceedings on a testimony with partial inaccuracies and to revert to translated reports provided by the Applicant.

Ahmadis, for whom the practise and possibly also the promotion of their faith in public are elements which define their identity and as such are essential, are very likely to be at risk of political persecution in Pakistan. The “relationship consideration” demanded by the Federal Administrative Court, whereby the number of members of a particular group is compared with the number of actual threatening acts of persecution, seems virtually impossible in this case.