Case summaries
The applicants are Afghan nationals married religiously in Iran when the first applicant was 14 years old and the second applicant 18 years old. When they applied for asylum in Switzerland a year later, the Swiss authorities did not consider them as being married and the second applicant was subsequently expelled to Italy. They alleged that this expulsion constituted a violation of their Article 8 ECHR right to respect for family life. The Court found that the Swiss government had been justified in finding that they were not married, and held that the decision to expel the second applicant was not a violation of Article 8.
A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.
When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.
In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.
Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law.
A refusal to permit re-unification of family members with a child granted asylum in the United Kingdom can constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR despite the Immigration Rules not providing for family reunification where a child has been granted asylum in the UK.
Same-sex couples are not excluded from the ambit of the Convention’s family life and cohabiting is not a pre-requisite of establishing family life.
A difference in treatment between persons in relevantly similar positions has occurred in this case since the Croatian Aliens Act has made no provision for same-sex couples seeking a residence permit to join their respective partner, whereas it did contain provisions relating to married and unmarried different-sex couples. The applicant had, therefore, experienced a difference in treatment based on her sexual orientation which had not been justified with weight reasons by the Croatian government. Croatia had, thus, violated Article 14 read in conjunction with Article 8.
The Upper Tribunal ordered the Secretary of State for the Home Department to immediately admit four vulnerable Syrians from an unofficial migrant camp in France to the United Kingdom in order to be reunited with refugee family members during the examination their asylum applications. Although they had not applied for asylum in France or been subject to Dublin procedures, the particular circumstances meant that failing to do so would lead to a disproportionate interference with their right to respect for family life.
When balancing the applicant’s right to family reunification and the protection of the rights of others in relation to the welfare of the state, which would be lessened if the application for family reunification were approved, the Supreme Court favours the latter since according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation when protecting the right to family life.
Non-Citizen children of the State have rights protected by the Constitution when in the State, including rights under Article 41, 42 and 40.3. However, the right to reside in the State is a protection under Article 40.3 which is reserved for Irish citizen children. It is the citizenship of the child that confers this right to live in the State under Article 40.3.
The best interests of the child are considerations that must be assessed when deciding upon a deportation order for a child. However, as the Convention on the Rights of Child has been ratified by Ireland but has not been implemented as part of domestic law, the Court is not bound to view the best interests of the child as the primary consideration.
The right to private life under Article 8 ECHR can involve social and community ties in the host State. The right to private life involves an assessment of a person’s right to moral and physical integrity. Where such rights are engaged a decision relating to the removal of a person from the State must be assessed against the gravity of the consequences on such ties.
When considering if the right to respect for private life is engaged in relation to an individual who has never been permitted to reside in the host State (other than pending a decision on an asylum claim), it is permissible to take into account that the private life developed at a time when the right of the individual to remain in the State is precarious.
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.
The criteria for detention under Article 28(2) of Dublin III Regulation must be assessed against the length and conditions of detention and must be precisely evaluated with regard to the impact on a child. Failure to do so renders the decision to detain unlawful.