Case summaries

The case shows how the legal amendment which entered into force on 13 November 2015 changed the situation of asylum seekers by deleting the legal basis for detention formulated as “preventing from abusing the asylum proceedings”. Instead, article 87 (1) (3) of the Law on granting protection to foreigners in the territory of the Republic of Poland reflects article 8 (3)(d) of the recast Reception Directive and states that an applicant can be detained in order to issue or enforce the return decision if towards the applicant there is an ongoing return proceedings or there was a return decision issued and the applicant already had the opportunity to access the asylum procedure, and there are reasonable grounds to believe that the application was merely made in order to delay or frustrate the enforcement of the return decision.

The Border Guard relied on this provision when prolonging the detention of the applicant in the present case arguing it with the need to secure the proceedings regarding international protection. In the opinion of the Court, this provision cannot be used in the situation where the applicant is not subject to return proceedings and no such decision has been issued so far. That is why he should be released.

The Court ruled that when deciding whether the subsequent application is admissible, new facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant. When examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the manner in which they are presented.

With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court stated that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds.  

According to the jurisprudence of the Supreme Administrative Court an oral hearing can only be waived if the complaint does not claim any facts relevant to the assessment which are in contradiction or go beyond the result of the administrative investigation procedures.

On the contrary, it constitutes a substantiated denial of the consideration of evidence by the relevant authority if a complaint questions the credibility of different sources which formed the basis of such consideration. The lack of an oral proceeding in such cases leads to a violation of the obligation to hold a trial.

With regards to a possible exclusion from asylum its severe consequences for the individual do not only require that the exclusion clauses of the 1951 Refugee Convention are interpreted narrowly but also that the facts are sufficiently established in order to determine which conduct the exclusion is based on and to weigh the reprehensibility of the offense against the need of protection of the applicant.

Considerations of the competent authority, which are limited to the assumption that the individual in question has participated in hostilities and has caused the death of opposing soldiers and civilians without further clarifying when,  on which occasion and under which circumstances such participation has taken place, do not meet the requirements for determining whether the criteria for exclusion are fulfilled.  

The possibility of submitting evidence for assessment is a basic procedural guarantee. Thus, if the party’s argumentation is based on defined circumstances, essential for his/her case, the responsible authority should hear witnesses and get acquainted with the evidence gathered within asylum proceedings handled by relevant authorities in another EU Member State.  

The proceedings before the Slovak Regional Court in respect of judicial review of the applicant’s detention had been incompatible with the requirements of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court).

The provisions of the Asylum Procedures Directive have been fully transposed into the CESEDA. A decision of the OFPRA based on all the documents/ evidence submitted by the applicant in support of his subsequent application without an interview does not infringe Article 41(2) of the Charter. When OFPRA considered the subsequent application, it was legitimate for it to have rejected the application without any interview since the new documents/ evidence provided were without merits. The Court found that M.A’s application must be rejected without any need to re-examine the facts he submitted, including those in his first application. The application of M.A was rejected.

The case examined the allegations of three applicants of Chechen origin that their deportation to Russia would place them in conditions amounting to inhumane and degrading treatment. Their allegations were based on the general situation of Chechens in Russia as well as on an individual risk of the first applicant because of his documentary work, recording the execution of villagers by the Russian federal troops.

The Court found that the deportation of the applicants to Russia would give rise to a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the European Convention on Human Rights.

The Asylum Court upheld the Federal Asylum Agency’s rejection of the mother and son’s application on the basis that Poland was responsible for the application under the Dublin II Regulation. The Court held that Austria was not obliged to apply Article 3(2) Dublin II Regulation due to a threatened violation of Article 3 or Article 8 ECHR. 

A bad situation in the country of origin does not constitute a sufficient intrinsic reason to accord refugee status or other forms of protection.

One cannot question the credibility of an applicant solely on the basis of a discrepancy between the information stated in the application and the information provided in subsequent stages of the proceedings.

The Court found that the decision refusing protection and containing a return order issued to an asylum seeker, whose spouse obtained a temporary residence permit within a regularisation action, would infringe his right to respect for family life, as defined in the ECHR.