Case summaries

The applicants are seeking damages on the basis of a violation of article 8 ECHR in respect of the refusal of the Swiss authorities to permit the family reunification of an Egyptian son with his father, who has Egyptian and Swiss nationality.

Regarding the protection of the right to family life in asylum procedures, same-sex partnerships are in a comparable situation with heterosexual relationships. A distinction between the applicants for international protection based on sexual orientation is not in compliance with the Constitution. Article 16b(1) of IPA, which does not consider persons of a same-sex living in established partnership as family members, is inconsistent with the right to non-discriminatory treatment in the exercise of the right to family life.

The procedural dimension of Article 8 ECHR as well as the investigative and evidence gathering obligations on Member States within the Dublin III Regulation require the Secretary of State to proactively and expeditiously undertake steps to verify familial links. Passiveness in this regard will lead to an unlawful decision making procedure.  

The absence of an individual right of the applicant to challenge the determination of the State responsible to examine their asylum claim on Dublin II grounds does not prohibit the autonomous application of ECHR Article 8 to decisions to remove persons from one Member State to another. However, taking into account the significance of the Regulation and the need to preserve its effectiveness, an especially compelling case would have to be demonstrated to deny removal following a Dublin II decision. When the Secretary of State has certified such human rights claims as clearly unfounded, it must be shown that the same decision could have been reached on reasonable grounds by an immigration judge.

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 assessing the legal requirement that a Belgian spouse has to prove that he/she has means of subsistence which are “stable, regular and sufficient”, the applicant’s financial means can be taken into consideration [because according to art. 221.1 and 2 of the Civil Code the Belgian spouse is capable of legally disposing of the applicant’s financial means].