Case summaries

This case concerns the interpretation of Article 6 of Regulation (EC) No 343/2003 when an unaccompanied child submits more than one asylum application in two Member States and does not have any family members present in the territories of the Member States. In such circumstances the CJEU held that the responsible Member State is the one in which the child is present after having lodged an asylum application there.

Owing to a violation of the right to respect for private life, the expulsion of the Applicants was declared permanently unlawful. On the grounds of Art 8 of the ECHR, the Asylum Court emphasised the significance of illnesses and their treatment (outside the context of Art 3 of the ECHR) in the host country and in doing so also referred to the disadvantagouss effects of the discontinuation of  psychotherapy by the applicant mother on the child. With reference to the best interest of the child, the Asylum Court made it clear that, in the case of children, roots to the host country could be developed more quickly than for adults, in particular if especially formative parts of childhood and young adolescence were spent in the host country.

This judgment overturned the decision of the Polish Refugee Board on examination of a manifestly unfounded application, on refusal to accord refugee status, provide subsidiary protection or grant a permit for tolerated stay, and on deportation from the Republic of Poland

In the proceedings, the foreigner stressed that he had left his country of origin as a child and currently has no family there, and that his entire family resides legally in Poland (they were granted a permit for tolerated stay in refugee proceedings). As the decision on refusal of protection is linked to the decision on deportation, refusal of protection would result in the Applicant being unable to see his family for many years. Therefore, in the Applicant’s opinion, the decision on deportation constituted interference in his family life, since it would result in him being separated from his family.

The Court found that the authority should properly examine and address the allegations made by the Applicant and thus consider the foreigner’s individual and family circumstances in the context of the possible application of Article 8 of the Convention, including the length of his stay in Poland, the possible obstacles to him living in his country of origin, and the likely effects on the Applicant’s family if the family was to be separated by the Applicant moving to another country.

A child with life-threatening leukaemia was granted leave to remain together with his parents on the grounds of particularly distressing circumstances. A time limit was set on the leave to remain as the need for advanced care and treatment was assessed to be temporary.

The Constitutional Court revoked the decision by the Asylum Court, as it violated the right of the Applicant to respect for his family life in accordance with Art 8 of the ECHR. In particular, the reference by the Asylum Court to the possibility of maintaining the relationship with his one-year old child (with asylum status in Austria) by means of modern media (Internet, Skype, telephone,…) was incomprehensible.

The right to family reunification involving Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals and changes in the composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals. The case involves the right to respect for family life and how to take into consideration the children’s best interests.

The expulsion of an asylum seeker after asylum proceedings lasting approximately eight years without any culpable delay by the Applicant, during which he established a family and also integrated well in other respects, infringes his right to a private and family life.

When reaching a decision, the Defendant should have protected the best interest of the child. Taking into account the fact that the Applicant is a minor and providing legal representation for a minor applicant, are necessary elements in the process of demonstrating and establishing the facts. The principle of protecting the best interest of the child has to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of  evidence (in relation to subsidiary protection).

The Defendant should already have started searching for parents during the procedure for international protection and not only once the procedure for removing the child from the state has begun.   

Threats and violence against a person’s family members can be considered as acts of persecution where that person is connected to the facts which previously led to the violence..

The Plaintiff needs to state all circumstances known to him in relation to his persecution; however he does not need to establish a material and legal connection between the persecution and the reasons for persecution.

The fact that somebody is a child in Afghanistan can mean that he belongs to particular social group.

After six and a half years of single asylum proceedings, the Applicants, a family with three children who were well-integrated in Austria, , were expelled by the Asylum Court to Armenia. The Constitutional Court revoked this decision on the grounds of a violation of Art 8 of the European Convention on Human Rights. The reasons for this were primarily that the integration of the children was given insufficient weight.

In considering the possible exclusion under Art 1F, careful consideration must be given to culpability. Domestic law including any defences must be accurately cited. When the applicant is a child, consideration of her age and understanding; together with consideration of her welfare must form part of the overall analysis. If a child is found to be excluded from asylum or humanitarian protection the welfare of the child should be considered when arrangements for other leave to remain are considered.