Case summaries

The Court ruled that, even where national security was at stake, deportation measures should be subject to some form of adversarial proceedings before an independent authority or court. In this case, the Macedonian courts failed to scrutinise whether an expulsion order was issued on genuine national security grounds, violating Article 1 of Protocol No. 7 to the Convention.

The Court submitted a request for a preliminary ruling to the Court of Justice of the European Union on the requirement of an automatic suspension of the execution of a negative decision on applications for international protection under EU law.

The case concerns an application for the annulment of the decision of the Appeals Committee which rejected the applicant’s previous application to overturn the decision of the Regional Asylum Office of Samos whereby he was denied international protection. The Court determined that the case was inadmissible, accepted the relevant justifications given by the Appeals Committee and rejected the application. 

The possibility to lodge an asylum application in practice is a prerequisite for the effective protection of those in need of international protection. If access to the asylum procedure is not guaranteed by the national authorities, asylum applicants cannot benefit from the guarantees afforded to those under the asylum procedure, leaving them subject to detention at any time. The length of time in which it took for the applicant to lodge his asylum application violated his rights under Article 13 read in conjunction with Article 3 ECHR.

The refusal of an entry decision given to an unaccompanied child at the Franco-Italian border is manifestly unlawful and constitutes a severe breach of the applicant’s interest.

In cases of deportation to a third country, the competent authority is required to assess, on a case-by-case basis, if the third country offers effective legal protection against deportation to the state of origin.

In the case of a Turkish journalist of Kurdish origin, the competent authority had only insufficiently assessed if the applicant enjoys sufficient legal protection in Brazil against refoulment to Turkey. It therefore violated her right to be heard.

Where an individual is detained with a view to his removal and an Article 3 violation is alleged if the applicant is returned, it is for the Court to rule on the plea and thus assess the lawfulness of the decision to detain.

In the light of the ECtHR jurisprudence on Article 3 ECHR and country of origin information on Sudan the Belgian authorities had to rigorously verify if the applicant would risk being subjected to treatment contrary to Article 3 ECHR before issuing the order to leave the territory, which includes giving the applicant an effective opportunity to be heard. This applies regardless of whether the applicant had applied for asylum or not. 

The National Court for the Right of Asylum (CNDA) has a responsibility to follow the general rules on closing files. Where this is not done, the Court can be found negligent.  

The following questions are referred to the Court of Justice of the EU for a preliminary ruling:

(i) when dealing with transfer of a protection applicant under regulation 604/2013 to the UK, is a national decision-maker, in considering any issues arising in relation to the discretion under art. 17 and/or any issues of protection of fundamental rights in the UK, required to disregard circumstances as they stand at the time of such consideration in relation to the proposed withdrawal of the UK from the EU;

(ii) does the concept of the “determining member state” in regulation 614/2013 include the role of the member state in exercising the power recognised or conferred by art. 17 of the regulation;

(iii) do the functions of a member state under art. 6 of regulation 604/2013 include the power recognised or conferred by art. 17 of the regulation;

(iv) does the concept of an effective remedy apply to a first instance decision under art. 17 of regulation 604/2013 such that an appeal or equivalent remedy must be made available against such a decision and/or such that national legislation providing for an appellate procedure against a first instance decision under the regulation should be construed as encompassing an appeal from a decision under art. 17;

(v) does art. 20(3) of regulation 604/2013 have the effect that in the absence of any evidence to displace a presumption that it is in the best interests of a child to treat his or her situation as indissociable from that of the parents, the national decision maker is not required to consider such best interests separately from the parents as a discrete issue or as a starting point for consideration of whether the transfer should be take place.

Concerning the criteria of “filing the application” in § 75 S. 2 VwGO, the informal request for asylum according to § 13 AsylG must be taken into consideration as the relevant date and not the formal lodging of the application according to § 14 AsylG when the Federal Office fails to provide an opportunity to lodge an application. Otherwise, the work overload that the Federal Office is facing, would be a detriment for the applicant, both concerning the scheduling for the formal application and concerning the examination of the application.