Case summaries
The Court of Justice held that defending personal interests against illegally acting non-state actors due to state corruption can be regarded as ‘political opinion’ under Directive 2011/95 if perceived as opposition by the persecuting actors.
In a case concerning a foreign national who had a valid refugee status in Germany, the Dutch Secretary of State ordered them to leave the country and placed her in detention in view of returning her to Germany. The Council of State found that the first instance Court wrongfully declared that Article 59(2) of the Aliens Act of 2000 provided no basis for detaining the foreign national.
Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.
The Return Directive does not prevent a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.
In a case of an asylum application on the grounds of gender based persecution, supported by medical reports, the Belgian Council of State held that it belongs to the asylum authorities to investigate the origin of injuries, whose nature and seriousness imply a presumption of treatment contrary to article 3 ECHR and to assess the risks they reveal.
Without this assessment, the judge cannot legally conclude that the Applicant does not establish that he has been persecuted or has suffered serious harm or been subjected to direct threats of such persecution or harm.
The interview of an unaccompanied minor, conducted without any legal representation, violated domestic and international provisions regarding the right to a hearing and the best interest of the child.
The Spanish Supreme Court’s Administrative Chamber decides on the appeal of the State Attorney. He appealed the National Court’s judgement that accepted to consider an application for the re-examination of international protection that was denied in first instance, and was presented in a different place. The Supreme Court concludes that even if an application is not presented before the competent authority, are these authorities the ones who have to refer the case to the competent. Since this referral was not done, the petition for re-examination is valid.
The difficulties in access to the regional telephone operating centers set up by the French Office for Immigration and Integration (OFII) in order to obtain an appointment to register asylum applications leads to legal uncertainty for asylum seekers. This legal uncertainty violates their constitutional right to asylum, and therefore creates an emergency situation on which the Urgent Applications Judge can adjudicate.
Persons entitled to refugee protection should be accorded the same treatment regarding assistance as provided to nationals of the Member State. Article 29 Directive 2011/95 and Article 23 Geneva Convention do not make this treatment dependant on the length of the applicant’s stay in the Member State.
A refugee may rely on the incompatibility of legislation, such as that at issue in the main proceedings, with Article 29(1) of Directive 2011/95 before the national courts in order to remove the restriction on his rights provided for by that legislation.
The rescuing actor is not only responsible for the search and rescue operations but should also consider the safety of disembarkation points in line with the principle of non-refoulement. The Open Arms ship conducted a reasonable assessment of the situation during the rescue operation, given that Libya could not be considered a country where the rescued migrants could be safely returned and Italy had already communicated an available place of safety.
it should be assessed whether the migrants – if rescued by the Libyan authorities - would have been taken back to a country where there are ongoing severe violations of human rights. In the case at issue, Libya has to be considered such a country. the rescuing actor is not only responsible for the SAR operations but also for the designation of a POS (place of safety) for the migrants to be disembarked at. the principle of non-refoulement had to be applied. the decision to communicate with the Italian authorities, which were the first interlocutor with the Open Arms during the entire operation, including during the disembarking phase, is considered reasonable.