Case summaries

The automatic application of domestic provisions regulating expulsion following a criminal conviction may amount to a violation of Article 8 where the impact of the removal measure on the family and isses of proportionality are not sufficiently assessed. In this assessment, the best interests of the child should bear significant weight.

In the case of an Afghan Shia Hazara applicant, the Belgian Council for Alien Litigation considered that the request for international protection was based on several sources of fear, which must be analysed in combination with each other, forming a cluster of concordant evidence.

The Council granted the applicant refugee status. 

Given the emergency of the situation, family reunification could only be refused in circumstances where the relevant individual does not comply with principles of public order.

As a result, the Court concluded that there were serious doubts as to the legality of the decisions refusing family reunification.

A Union citizen’s lack of sufficient resources for their family member, who is a third-country national, not to become a burden on the national social system, cannot sufficiently establish a reason to refuse a derived right of residence on the basis of article 20 TFEU, if that refusal would result in the national having to leave the territory of the EU.

Secondly, a relationship of dependency does not exist solely because the national law requires spouses to live together.

Article 10(2) of Directive 2003/86 allows Member States to define autonomously the nature of the relationship of dependence between the sponsor and the family member not referred in art. 4, as long as the national law have regard of all the relevant circumstances of the refugee’s situation through a case-by-case approach. 

In order to examine prohibitions of deportation, the Federal Office for Migration and Refugees (BAMF) has to consider the case of each family member even in cases of family associations separately whether deportation prohibitions exist. In this case, the risk assessment must be based on the assumption that a nuclear family living together in the Federal Republic of Germany will return to its country of origin as a family unit. This also applies if individual family members have already been granted a protection status or if national deportation prohibitions have been established.

It is necessary to make a proportionality assessment with consideration of both the gravity of the crime committed by the applicant and the interests of society, and the applicant’s individual rights, particularly his right to private and family life under Article 8.

The Federal Administrative Court failed to fully assess the impact that the measure of removal would have on the applicant. The evolution of the applicant's conduct since the occurrence of the crime, the applicant’s deteriorating medical condition, and his social, cultural and family ties in the host country were not sufficiently examined in the decision. The failure to assess the proportionality of the removal order and amounted to a violation of Article 8 of the Convention.

There is a case of urgent necessity concerning interim measures according to § 123 VwGO obliging a Member State to accept a take charge request regarding  the asylum applications of family members of a person entitled to subsidiary protection in that state when the decision on an asylum application of these family members is imminent in the requesting state. 

The Algerian Kafala system does not create a parent/child relationship within the meaning of direct descendant under Directive 2004/38 but it does fall under the notion of other family members of Article 3(2)(a) of the same Directive. The State must therefore make a balanced and reasonable assessment which considering the age of the child, the closeness of the relationship whether the family have lived together; potential risk of exploitation/trafficking and the best interests of the child. 

The discretionary clause in Art. 17 II Dublin-III regulation might under certain circumstances oblige the member states to take charge of an applicant. This can be particularly the case, if the competence of the member state under chapter III of the Dublin-III regulation would not be given because of a deadline expiry the applicant had no influence on.