Case summaries

An application for asylum filed prior to 20 July 2015 cannot be considered inadmissible because subsidiary protection has already been granted by another Member State (if the protection applied for is more favourable than the existing protection). The assessment of the admissibility of an application for asylum filed prior to 20 July 2015 is subject to the laws, regulations and administrative provisions adopted pursuant to the now superseded Asylum Procedures Directive (Directive 2005/85/EU) which provided for inadmissibility of an application for asylum if refugee status had already been granted by another Member State. 

The applicant requested international protection in Spain on 3rd November 2014, having been assaulted in his country of origin because of his sexual orientation. His partner died as a result of the assault. On the 26th October 2015, the Trial Chamber denied his request, stating that the allegations put forward by the applicant were “improbable or insufficient.”

On 18th July 2016, the applicant appealed this decision on two different grounds of appeal. First, on the grounds of an error when applying the relevant procedures for granting and withdrawing international protection, mistaking the phase of admission for the phase of concession. And second, on the grounds that the Chamber’s interpretation of the evidence provided was restrictive.

The Chamber granted the appeal against the decision made on 26th October 2015 and this decision was ruled null and void.

This case dealt with the issue of whether the Secretary of State’s certification of the asylum claims of the two independent applicants as “clearly unfounded” was flawed on public law grounds, and the important difference between a decision on refugee status itself and a decision on a claim being “clearly unfounded”.
 

AA claims he was unlawfully detained from 17 February 2015 to 27 February 2015 because he was detained as an unaccompanied child in a way contrary to paragraph 18B Schedule 2 of the Immigration Act 1971.

The decision turned on whether the word “child” in the Immigration Act 1971 was to be interpreted objectively (i.e. is the individual, in physical fact, under 18) or whether the detention’s legality involved the reasonable belief of the immigration officer that the individual is under 18.

The return of a third country national woman or girl to a country where female genital mutilation is traditionally practised is not a breach of Art. 3 of the Convention where her family (including her possible husband) has the will and the possibility to ensure that she will not be subjected to that practice. 

The Supreme Administrative Count in the case concerning housing for a refugee ruled that the applicant, as a refugee, has found herself in a very specific situation, which was not taken into account by the authority. The applicant was not able to submit all the documents and information about the members of the family who stayed in Chechnya in order to obtain housing. It is beyond any doubt that the applicant and her children cannot live with their relatives, because other members of their family are in Chechnya, so the missing information could not have had any influence on the case whatsoever.

The Supreme Administrative Court found that it is the authority which is obliged to establish all the facts and find the objective truth. Although the local act imposes an obligation on the applicant to present concrete evidence, it cannot be stated, that justifiable problems with completing the evidence by the applicant exempted the authority from its own obligation to examine the case and enabled to automatically dismiss the application. Such an understanding would be inconsistent with article 6 of the 1951 Convention relating to the status of refugees.

The Italian consolidated Law on Migration (Art. 5(6) n. 286/1998) requires humanitarian protection to be given where a person is in a situation of vulnerability. Such a situation occurs when the applicant’s constitutional and international fundamental rights, such as health and nutrition, are compromised.

An Article 3 compliant assessment requires a full and ex nunc evaluation of a claim.  Where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu. 

In case of conflict between a domestic and international norm the Court is obliged to adhere to the latter and set aside the former. Given the well-established right to an effective remedy in international and European instruments, an element of which relates to the remedy’s timeliness, the court is obliged to remake the OIN’s subsidiary protection decision and provide the applicant with refugee status. This conclusion applies notwithstanding that domestic legislation prohibits the Court from reforming an OIN decision. To abide by this legislation would result in a never-ending appeal procedure thereby rendering the remedy ineffective.