Case summaries
An application for a revision of a final court decision of the Swiss Federal Court is only admissible if the applicant presents new relevant facts or evidence which he was not able to provide in previous proceedings even if he had acted with due diligence.
If the new evidence relates to another person’s hearing files (in the case at hand a relative’s hearing protocol before the Swiss asylum authority) the fact that the files could not be retrieved during the proceedings cannot be attributed to the applicant if he lacked the required consent from the person concerned to access the files. By rule of principle, it is the asylum authority’s duty to consult relevant documents for the assessment of an application which is notably the case for statements made by family relatives if the factual circumstances on which the respective applications are based are closely related.
In order to guarantee that an applicant for international protection has an effective judicial remedy within the meaning of Article 47 of the Charter, a national court or tribunal is required to vary a decision of the first-instance determining body that does not comply with its previous judgment. The court or tribunal must substitute its own decision on the application for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way.
Where the ECtHR has, under Article 39 of the ECHR, granted interim measures prohibiting the Government from deporting the Applicant, this does not impact the ability of national courts to rule on the Applicant’s claim to asylum. The interim measures are binding on national authorities only.
The ECtHR ruled that the Greek authorities had failed in their positive obligation under Article 8 ECHR to guarantee that the applicant’s asylum request is examined within a reasonable time in order to ensure that his situation of insecurity, which impinges upon several elements of his private life, is as short-lived as possible.
This Court case confirms the obligation on the part of the decision-maker to make a clear finding regarding the applicant’s ethnicity, and to conduct a forward-looking assessment when assessing the well-founded nature of his fear.
An Article 3 compliant assessment requires a full and ex nunc evaluation of a claim. Where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu.
The Council of State requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on the compatibility of Belgian Law with Article 5 of Directive 2008/115/EC (the “Directive”). The Directive requires Member States to respect the principle of non-refoulement, as well as ensure that there is a right to an effective remedy.
Under Belgian Law, the Commissioner-General for Refugees and Stateless Persons (the “Commissioner”) can dismiss an asylum application and issue an order to leave the territory (“Return Order”), before any judicial appeals or other asylum procedures have been exhausted.
The question in the current case was whether the relevant Belgian legislative provisions were contrary to the Directive. The proceedings were suspended pending a preliminary ruling by the CJEU (C-77/17 and C-78/17).
The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims. A further right to appeal remained with the Cypriot Supreme Court. The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.
The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR. The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.
Art. 19 of the Eurosur Regulation cannot be regarded as allowing Ireland and the UK to take part in provisions of the Schengen acquis in the area of crossing of the external borders. Therefore, the said article cannot constitute a circumvention of art. 4 of the Schengen Protocol.
When due to security reasons an individual cannot be allowed to return to his home where he has lived most of his life, the State has to adopt any other available positive measure to restore his property rights or to provide him with compensation in an appropriate time. Otherwise a violation of both Art. 8 of the Convention and Art. 1 of Protocol No. 1 may occur.