Case summaries

A foreigner who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity and in an objectively reasoned way, that there are specific facts which cause him to have a fear of persecution for reasons of race, religion, nationality, social group or political opinion. If such substantive claims have not been submitted, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited but these do not establish grounds for refugee status, then there is no obligation to give specific reasons for rejecting the application for asylum. The “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the UN High Commissioner for Refugees is non-binding in nature but contains “best practice” for the relevant authorities when examining asylum applications and, in that way, sets out “soft law”. Granting a residence permit on humanitarian grounds falls within the broad discretionary powers of the relevant authority; but it can, exceptionally, be obligatory if the foreigner would – should he be repatriated to the country of origin – be at risk of torture or other inhuman or degrading treatment or punishment.

Plea for an ab initio re-examination of an application for asylum. The Special Committee formed under Article 3(5) of Presidential Decree 61/1999 gave a positive opinion because the Applicant had been involved in political activities in his country, as a Kurd, against the ruling regime; and that activity had increased during his stay in Greece. The application for asylum was rejected by the Minister for Public Order without any specific justification for deviating from the Special Committee's clear opinion. When assessing whether there is evidence that a person seeking recognition as a refugee has a well-founded fear of persecution, the Administration may take account of information regarding the activities of the interested party's close relatives.

This case concerned service of the initial negative decision against an asylum application where the notice was served on the foreign applicant asylum seeker without specifying the language in which the applicant was informed of its content.  The court rejected an application for suspensive effect of the decision rejecting the asylum application in view of the pleas used by the applicant – of Palestinian origin – that he left his country for economic reasons, since there is no evidence that there is a risk of persecution should he return to Palestine, nor have any of the conditions for asylum on humanitarian grounds been met. The possible disruption to the lifestyle the applicant has created for himself whilst working in Greece does not constitute a reason to suspend any of the acts which form part of the asylum application examination procedure. 

The fact that Poland agreed to take charge of the asylum procedure of a whole family is, by itself, not a proper basis for an inadmissibility decision. The hierarchy of the criteria for determining the Member State responsible for the procedure on the merits, set out in Art 5(1) Dublin II Regulation, must be respected. In this case the husband and father of the family had already been admitted to the procedure on the merits and, therefore, Art 8 was applicable prior to Art 14.

This case concerned fear of persecution for reasons of race and membership of a particular social group. The provisions of Article 1(4) of Presidential Decree 61/1999, which should be interpreted with reference to Articles 3 and 22 of the Convention on the Rights of the Child, recognize the special circumstances of asylum applications submitted by unaccompanied minors, for whom special procedural guarantees have been established.  When examining asylum applications submitted by unaccompanied minors one must consider the Applicants' maturity and level of mental development; take into account the fact that they may have a limited knowledge of the prevailing situation in their country; and also bear in mind that their ways of expressing their fears may differ from those of adults. Particular emphasis is given to the existence of objective factors, based on which one can assess the existence of a well-founded fear that unaccompanied minors may be persecuted in their own country. The contested decision is annulled for insufficient reasoning because there is no evidence in the file that the Administration took care to ensure that a special temporary representative was appointed for the unaccompanied minor, and there is no reference in the report to there having been an oral assessment to determine the level of his mental maturity. 

Application for annulment of a decision by the Minister of Public Order 

The case addressed the absence of procedural guarantees in the context of appointing a Commissioner and assessing the applicant’s level of maturity with regard to the need for special treatment of an unaccompanied minor.

The lack of personal persecution of an alien applicant does not preclude the recognition of refugee status if it is shown that there is an objective and well-founded fear of individual persecution in the applicant's country.

The Court found that the decision of the Minister for Public Order was improperly reasoned in that itfailed to comply with the Administration's obligations to take into account the particular circumstances of the case, to consider the merits of the applicant's claims based on objective evidence, to conform with procedural guarantees when assessing applications by unaccompanied minors, and to interpret the applicant's claims within the true intended meaning of the words used. It found that the Administration had failed to investigate the applicant's risk of persecution on the grounds of his racial origins and membership of (participation in) a particular social group (young male Hazara) in view of the prevailing conditions in his country.  The contested decision was also defective because of a failure to examine the existence of conditions for protection on humanitarian grounds.  

The seven day detention of a ‘temporarily admitted’ asylum seeker under the fast-track procedure was non-arbitrary and consistent with Article 5(1), but the 76 hour delay in providing the individual with the real reasons for his detention did not satisfy the promptness requirement of Article 5(2).

The Court held that the conditions for offering the Applicants temporary judicial protection had been satisfied, taking into consideration that the Asylum Committee had rejected the asylum-seeker's claims as being unsubstantiated without assessing his credibility, and also because the decision which rejected the application for asylum only vaguely referred to the prevailing situation in Iran.

Application for annulment of a decision by the Minister of Public Order

This case concerned the interpretation of Presidential Decree 61/1999 in light of Directive 2004/83/EC andexamined the reasoning of the Administration's decision in an application for recognition as a refugee, in an appeal for annulment. The minutes of the Advisory Committee should cite not only the interested party's claims but also the content of the questions put by members of the Committee and the alien's responses, as well as a detailed assessment of the claims and of any documentation or other evidence which may have been submitted. There is an obligation on the members of the Committee to deliver a reasoned judgment on the credibility of the asylum seeker. 

The provisions regarding the establishment and operation of Refugee Centres do not constitute a basis for ordering foreigners to stay in the said Centres, under penalty of having the asylum application procedure halted, on the sole ground that the police authorities consider their applications for asylum to be manifestly unfounded. The Refugee Centres were not established as centres where foreigners would be obliged to live – under penalty of halting the process of examining their applications for leave to remain – until the process had been completed, if those foreigners wish to and are able to stay elsewhere during the procedure, unless the Administration states that the measure is necessary for a specific and fully justified reason of public interest.