Case summaries

Inadequate care and unlawful detention of an unaccompanied minor seeking asylum: the case concerned the conditions in which a minor from Afghanistan, who had entered Greece illegally, was held in the Pagani adult detention centre on the island of Lesbos.

In this case, the Austrian Asylum Court held the decision of the Federal Asylum Office not to grant refugee status to the applicant’s child was a violation of Austrian asylum law since the child’s father had been granted refugee status. The Court also held a separation of the newborn child from its mother violates Art 8 ECHR and, therefore, the applicant’s asylum application has to be admitted to the procedure on the merits.

In appealing a decision to transfer the wife and children of an asylum applicant to Poland, the applicants relied on the humanitarian provision in Art 15 Dublin Regulation. They also noted Art 3(2) of the Dublin Regulation states separation of family members should be avoided and that such a separation would violate Art 8 ECHR. The Austrian Asylum Court allowed the appeal on the basis of Austrian asylum law, under which family members of an asylum applicant have the right to receive the same status as the applicant.

The Family Reunification Directive does not make a distinction between whether a family relationship arose before or after the entry of the resident into the Member State. An application for family reunification may not be refused where the sponsor, the resident within EU territory, has proved that he has stable and regular resources which are sufficient to maintain himself and the members of his family, but who, given the level of his resources, will, nevertheless, be entitled to claim special assistance in order to meet exceptional, individually determined, essential living costs, tax refunds, or income-support measures.

The applicant was expelled from Russia on the basis of his religious activities and separated from his infant son as a result. While Russia attempted to justify this on the ground of national security, the Court held that sufficient evidence was not provided and that Articles 5, 8, 9 and 38 of the Convention and Article 1 of Protocol No. 7 had been violated.

This was an appeal against the decision to deport an asylum applicant to Italy, when his brother had been admitted to the asylum procedure in France. The Council of State found that, under Art 9(2) Dublin Regulation, Italy was the responsible Member State. Art 8 did not apply as the definition of family members in Art 2(i) does not include siblings. Art 15 was not applicable since the applicant could apply for asylum in Italy. Only after Italy has made a decision the application would it be France's responsibility to decide whether to grant permission to enter and reside in France.  

The presence of an adult asylum applicant’s sibling in an EU Member State entails no obligation for that State to apply Art 7 Dublin Regulation, as siblings are not included in the definition of family members in Art 2(i). This was the case even though the applicant’s brother had been granted refugee status and, subsequently, citizenship in France.

The European Court of Human Rights found that the authorities in the Netherlands had violated the right to family life of five Ethiopian nationals by not allowing them to be reunited in the Netherlands.

Although the applicant, an adult without children, did not fall within the definition of a family member under Art 2(i) Dublin Regulation and could therefore not rely on Art 7 and Art 8 to defeat a transfer order, his links to family members in France could justify applying Art 3(2) or Art 15. In such a case, the definition of a family member should not be interpreted in the restrictive sense of Art 2(i). In order to apply a broader definition, the applicant must provide evidence of the intensity of the links to the family. In this case, the applicant failed to provide such evidence.

The ECtHR held that the 1980 UK Immigration Rules breached ECHR Article 14 taken together with Article 8 as they discriminated on the ground of sex against three female applicants settled in the UK who wished to be joined by their spouses. It was easier for men settled in the UK to be joined by a non-national spouse than women but no objective and reasonable justification was found for this difference of treatment.