Case summaries
Courts must establish the current situation of the region from which the complainant originates and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of an Afghan family, the lower instance court did not sufficiently consider the security situation in the complainants’ country of origin, in particular with regard to the situation for minors. Thereby the court violated the right to equal treatment among foreigners.
Article 48 para. 3 sentence 2 and 3 AufenthG does not offer a suitable legal basis for the search of homes.
The issue of a search warrant according to police and public order law requires concrete evidence that certain documents could be detected. The violation of the obligation to cooperate according to § 48 para. 3 sentence 1 AufenthG (refusal of the applicant to obtain a passport or similar), as well as vaguely expressed doubts of the authorities about the passport loss, are not sufficient to issue a warrant for the search of homes. Such a search warrant is in any case not proportionate if the probability of detection is low.
The lower Court could not have carried out a more critical analysis, especially since there was no evidence, since the applicant’s entire claim was based on personal reasons.
When deciding upon an asylum applicant’s age, authorities should assess the evidence in a holistic way, and not rely solely on medical examinations of the applicant. If, in the absence of sufficient evidence, authorities conclude that the applicant is an adult, they need to justify their decision by reference to the grounds for its conclusion.
The judicial examination of whether subsidiary protection shall be approved requires a thorough assessment of the individual case. This applies in particular for especially vulnerable persons.
In cases of deportation to a third country, the competent authority is required to assess, on a case-by-case basis, if the third country offers effective legal protection against deportation to the state of origin.
In the case of a Turkish journalist of Kurdish origin, the competent authority had only insufficiently assessed if the applicant enjoys sufficient legal protection in Brazil against refoulment to Turkey. It therefore violated her right to be heard.
The ECtHR confirms previous decisions stating that Turkish law concerning procedural safeguards of detention continues to violate Article 5 §§ 4, 5 ECHR and that the applicant was not duly informed of the reasons for his detention. Moreover, the Court confirms that the detention conditions in Istanbul Kumkapi Removal Centre violate Article 3 ECHR.
An asylum applicant who was a victim of previous persecution in their country of origin can be granted refugee status under article 1, C 5) of the Geneva Convention. This is because, due to the severity of the treatment applied, the applicant’s fear is exacerbated to such an extent that, even if the persecution has ceased to exist, a return to the country of origin would be unthinkable.
A waiver to file an appeal against custody prior to deportation is only possible under strict conditions. Particularly there has to be a qualified legal representation when signing the waiver.
The risk of absconding in the sense of Art. 76a Residence Act cannot be assumed because of the mere fact that another state is responsible for the asylum procedure of that person.