Case summaries

The case refers to an appeal before the High National Court brought by the Appellant against the decision of the Central Court for Contentious-Administrative Proceedings to uphold the Ministry of the Interior’s denial of asylum.

The Appellant is a Nigerian national.In the application she claimed that when her father died, she was left in debt to the chief of the tribe to which they belonged.In order to settle the debt, the Applicant was forced to marry the tribal chief and was kept as a prisoner.

Therefore, the High National Court upheld the Applicant’s appeal as it deemed the situation suffered by women in Nigeria, and particularly forced marriage, constitutes a form of persecution for membership of a particular social group.

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.

In the opinion of the appeal court, the fact that the defendant disregarded the documents submitted by the applicant in support of his request for an application of Article 3(2) of the Dublin Regulation, and omitted to present an argument in the decision as to why it had not upheld the application, fails to satisfy the requirements of the generally accepted legal principles of administrative procedure, because the outcomes of these actions were not assessed and justified in the decision.

The case concerned a subsequent application for international protection based on the right to a family and private life (Art 8 of the European Convention on Human Rights (ECHR)) The application was rejected as inadmissible by the Ministry of Interior (MOI) on the basis that Art 8 considerations were deemed not applicable in asylum cases. However, the Supreme Administrative Court (SAC) made two important findings. Firstly it held that even if an application was considered to be inadmissible, there was an obligation to evaluate the risk of refoulement under Art 33 of 1951 Refugee Convention. Secondly, as provided by § 14(a)(2)(d) of the Asylum Act, in exceptional cases, to grant international protection for family life reasons, these have to be accepted as new elements in subsequent proceedings.

Even if the conditions for considering a subsequent application as inadmissible are fulfilled, the Ministry of Interior is still obliged to consider whether the applicant is in danger of serious harm upon return to his or her country of origin.

The fact that Poland agreed to take charge of the asylum procedure of a whole family is, by itself, not a proper basis for an inadmissibility decision. The hierarchy of the criteria for determining the Member State responsible for the procedure on the merits, set out in Art 5(1) Dublin II Regulation, must be respected. In this case the husband and father of the family had already been admitted to the procedure on the merits and, therefore, Art 8 was applicable prior to Art 14.

This case was an appeal against the decision of the Polish Refugee Board on refusal to accord refugee status on the grounds that the application was manifestly unfounded application, and on granting a permit for tolerated stay. The lack of grounds for an application does not mean that the case should not be examined on its merits.

When assessing a subsequent application, the authority may find that, in the framework of the new assertions of the interested party, the application is manifestly unfounded. The authority has the right to reach such a conclusion provided that the application is first examined in the context of its contents and in the context of the evidence cited by the Applicant.

The authority is also obliged to examine the case initiated by the subsequent application in light of the progress made, if any, in the case concerning the previously submitted (first) application for refugee status.

The application of a Bosnian Croat concerning the collective expulsions from Croatia to Bosnia-Hercegovina is found to be manifestly ill-founded and thus the application is inadmissible.