Case summaries

The rules of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (“International Protection Directive”) do not prohibit the review of an application for asylum in Germany in a case where an applicant has previously been granted subsidiary protection in another Member State, if such application for asylum has been filed before 20 July 2015. This is because the inadmissibility of applications filed before 20 July 2015 is governed by the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“Asylum Procedures Directive”). According to Article 25 of the Asylum Procedures Directive, Member States may consider an application for asylum as inadmissible if another Member State has granted refugee status, but not if another Member State has granted subsidiary protection. 

The applicants, a stateless Palestinian from Syria and two Syrian nationals, had been ordered to be expelled to Syria by the Russian authorities, and were detained in a detention centre in Russia pending this. The Court found that their expulsion to Syria would breach Articles 2 and 3, that Articles 5(4) and 5(1)(f) had been violated with regards to their detention, and that the restrictions on their contact with their representatives had breached Article 34.

The applicant did not have the possibility to have his allegations (which also supported his subsequent application)  duly taken into consideration. His written answers to the questions asked by the administrative authorities on his subsequent application were not documented with precision. His allegations need to be examined and evaluated further.

Deprivation of liberty as allowed by art. 5.1(f) of the Convention not only has to be with a view to deportation, but it also has to be in compliance with national law, and free from arbitrariness.

The submission of an asylum application does not as such imply that detention is no longer with a view to deportation.

This case examined the denial of a minor’s application for asylum which was decided primarily on the failure of his mother’s application. The Refugee Appeals Tribunal did not consider Country of Origin Information (COI) from the child’s perspective. Furthermore, clear reasons were not given for the refusal decision. The High Court granted leave and quashed the Refugee Appeals Tribunals decision to deny refugee status to the child. The Court also held that the best interests of the child should be a primary consideration of the Tribunal both with regard to the procedure and substantive consideration of appeal. 

The Court ruled that when deciding whether the subsequent application is admissible, new facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant. When examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the manner in which they are presented.

With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court stated that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds.  

The assigned political belief of an individual, his desertion or avoiding being drafted in the army are sufficient to grant a refugee status to an individual, if there is a connection between the reasons for persecution and the acts of persecution in line with Article 1.A of the Geneva Convention 1951 in a situation of an armed conflict. 

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court. 

This Case examines the refusal to grant refugee status to a Nepalese national. The Tribunal failed to provide clear, cogent reasoning for the decision. Documentation and explanations provided by the Applicant were not included in the decision. Unreasonable assumptions were made by the Tribunal including: as the Applicant’s wife, children and brother were safely residing in the country of origin, this inferred that the Applicant could do the same; since the applicant spent 6 years living safely in India, he could continue to live there safely. The High Court criticised the procedural approach by the Tribunal and the lack of coherent reasoning provided. The High Court granted leave and quashed the Tribunal’s decision.

The European Court of Human Rights held that the removal of a Syrian national of Kurdish origin to Italy would not give rise to a violation of Article 3 and 8 of the Convention.