Case summaries

The physical border around the enclave of Melilla is conformed by two fences and the intermediate zone created between them. The Spanish military police (Guardia Civil) considers that until a migrant has not overcome the second fence he or she has not entered into Spanish territory and therefore, Spanish law, including the Organic Act 4/2000 on the Rights and Liberties of Foreigners in Spain and their Social Integration (“Aliens Act”), does not apply to a migrant apprehended in the intermediate zone.

The Court ruled that, although this interpretation may violate international law, since there is no clear definition under Spanish law of where the border is located, the direct refusal of migrants who have reached the intermediate zone, does not constitute an administrative prevarication offence. 

The European Court of Human Rights has held that the detention conditions on the island of Chios, the detention centre of Tychero and the north of Greece, where a minor Palestinian was held, were not in breach of article 3 of the Convention.

In addition, the Court did not accept that the applicant’s right to liberty and security (article 5) and right to an effective remedy (article 13) had been violated.

Where a foreign or stateless person is on the border and wants to apply for international protection, the competent authorities have the duty to give him information about how to access the procedure. The competent authorities also have the duty to ensure translation support in order to facilitate access to the procedure of asylum. If these duties are not fulfilled both the decree of removal and the decree of detention are void.

An excessive length of the procedure (in this case 2 years and 5 months) for examining the jurisdiction for the application for international protection, which is not caused by the protection seeker himself, leads to an obligation of the Member State to decide the case itself (“duty of self-entry”). Thus this Member State has jurisdiction for the application for international protection to guarantee a fast and efficient procedure within the Dublin III-Regulation.

The administrative authorities ensured an adequate standard of proceedings and had correctly established the facts in a case of an applicant who had only brought up the argument that she was a victim of domestic violence at the court stage.

The Court does not accept the allegations that the applicant was deprived of her right to court because she and her children were deported before the deadline for the complaint to the court. The complaint was eventually lodged within the deadline which means she could benefit from the real possibility of applying this measure so her right to court was not infringed. Therefore the Court sees no need to request the Constitutional Tribunal to take a stand on this issue.

Where negative reports regarding the reception conditions and inhuman or degrading treatment in a first country of asylum indicate that an Applicant may not be safe in such a country, an Applicant’s request to remain in a Member State pending a decision on their right to remain must be given the benefit of doubt and outweigh the public’s interest in immediate enforcement of the ordered transfer.

The UK Court of Appeal held that the Secretary of State’s practice of detaining people under the Detained Fast Track (DFT) system while they await an appeal for a refusal of an application for asylum is unlawful. Although permitted by a policy document, an avenue for appeal within the DFT and its procedures were neither clear nor transparent, and there was no possible justification for detaining people while awaiting an appeal. 

The case focused on, among other things (consideration of documentation & country of origin information), the crucial issue of the duty of the State to provide appropriate and competent interpreters during the asylum process. Quashing the RAT (Refugee Appeals Tribunal)decision in this case, Faherty J ruled that she was not satisfied that the RAT had done its utmost, as required by law, to procure a Kurdish-Badini interpreter, and that the Court has to countenance the possibility that an error in interpretation could account for the perceived discrepancies in the applicant’s oral evidence.

The right to be represented by a lawyer in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 will only apply when an appeal to a return decision has been lodged and free legal assistance will be subject to national domestic legislation. 

The European Court of Human Rights (ECtHR) has held that the detention of an unaccompanied minor at Soufli border posts for over 5 months constituted a breach of Article 3 of the ECHR as well as a violation of the right to an effective remedy and the right to liberty and security.