Case summaries
Article 4(1) of Directive 2004/83 requires the determining authority, under its duty of cooperation, to obtain up-to-date country of origin information and, where relevant, a medico-legal report on the applicant’s mental health; a breach of that duty does not automatically lead to annulment unless it may have affected the outcome.
Under Directive 2005/85, delays in the asylum procedure cannot be justified by legislative changes and, on their own, do not warrant setting aside a decision absent an impact on the outcome.
Article 4(5)(e) of Directive 2004/83 means that a false statement later explained and withdrawn at the first opportunity does not, by itself, undermine the applicant’s general credibility.
Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.
In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of serious harm.
The High Court found that the Tribunal failed to ask itself the correct legal questions when assessing the issue of state protection in the applicants’ country of origin.
In specific, the High Court found that the Tribunalfailed to apply the correct approach to the ‘state protection test’ found in section 31 of the International Protection Act, 2015, by not seeking to establish whether an effective system of protection is in place, which is non-temporary in nature and which involves the taking of reasonable steps to protect those who otherwise faced a real risk of persecution or serious harm.
The automatic application of domestic provisions regulating expulsion following a criminal conviction may amount to a violation of Article 8 where the impact of the removal measure on the family and isses of proportionality are not sufficiently assessed. In this assessment, the best interests of the child should bear significant weight.
The State Secretariat of Migration (SSM) is obliged to assess the proportionality of a cessation measure in a case of a granted temporary residence in Switzerland. It was concluded that the cessation of temporary residence is not proportionate, when the applicant showed considerable efforts to integrate in the host community such as learning languages and practicing several internships to obtain a job in that country. His return would hamper all those integration efforts.
A court may dismiss the appeal without further proceedings in a non-public session, if the appeal does not depend on the solution of a legal question that is of fundamental significance.
In the case of an Afghan, the appeal does not depend on the solution of a fundamental question, if the lower instance has sufficiently examined the situation in the appellant’s country of origin. This is the case, if the court sufficiently considered possible internal flight alternatives by air.
The application of provisions on preclusion must always be decided without discretionary error. If the lower court does not make any discretionary considerations at all for its decision to apply a provision on preclusion when rejecting evidence due to a missed time-limit, it infringes the petitioner’s right to be heard under Article 78(2) of the Saxon Constitution (SächsVerf).
Well-grounded information is of central importance to any decision to exclude a person convicted for criminal matters from international protection in accordance with Article 1 F of the 1951 Refugee Convention.
The standardised nature of the questions to the applicants and similarities in the responses recorded do not necessarily indicate a lack of individualised assessment. The applicants were not deprived of an opportunity to submit arguments against their expulsion and did not make any claim of persecution risks in their country of origin. No collective expulsion under Article 4 Protocol 4 has been established.
Similarly, no violation of Article 4 Protocol 4 in conjunction with Article 13 has been established, as the claim cannot be considered arguable.
An application for a revision of a final court decision of the Swiss Federal Court is only admissible if the applicant presents new relevant facts or evidence which he was not able to provide in previous proceedings even if he had acted with due diligence.
If the new evidence relates to another person’s hearing files (in the case at hand a relative’s hearing protocol before the Swiss asylum authority) the fact that the files could not be retrieved during the proceedings cannot be attributed to the applicant if he lacked the required consent from the person concerned to access the files. By rule of principle, it is the asylum authority’s duty to consult relevant documents for the assessment of an application which is notably the case for statements made by family relatives if the factual circumstances on which the respective applications are based are closely related.