Case summaries

In order to justify detention, the Ministry must establish that there is a real risk that the applicant will abscond and that this is not simply a presumption. The results of the bone tests can be put to the side if the judge believes that it is impossible to determine the age of the applicant in this manner. 

The European Court of Human Rights held that the removal of a Syrian national of Kurdish origin to Italy would not give rise to a violation of Article 3 and 8 of the Convention.

The presumption that Italy remains in compliance with its EU and International Law obligations related to the reception and integration of asylum seekers and Beneficiaries of International Protection has not been rebutted. Asylum seekers and BIPs suffering from severe psychological trauma can be returned to Italy with no real risk of breaching article 3 ECHR, or 4 CFREU, since the Country's reception capacities have not been exceeded, while effective medical treatment is available under the same terms as to Italian nationals.

The court may reject the request for a preliminary ruling to the CJEU when the provision is clear (acte clair), only if it checks that the clarity of the contested provision is equally obvious to the courts of other Member States and the CJEU, taking into account the characteristics of EU law and special problems posed by its interpretation, including a comparison of all language versions, respecting the specific terminology of EU law and the placement of the interpretation in the context of EU law.

The Constitutional Court annulled the contested judgment because of the infringement of the right to equal protection of rights in connection to the right to an effective remedy.

The Applicant appealed a decision ordering his transfer to another Member State responsible for examining his application for international protection because the six-month period during which his transfer had to be carried out in accordance with Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”) had expired. 

The Council of State denied the appeal holding that the six-month period was interrupted by the legal action against the transfer measure but had not restarted because the appeal was still pending when the Préfet issued the Dublin III summons to the Applicant.

Art. 2 lit. (n) of the Dublin III Regulation requires objective criteria defined by domestic law for the ‘risk of absconding’, which is a necessary requirement for the imposition of detention pending transfer according to Art. 28 (2) of the Dublin III Regulation.

The domestic legal provision of § 76 (2) FPG lacks the necessary objective criteria defined by law for the ‘risk of absconding’ according to the Dublin III Regulation and is therefore not a sufficient legal basis for detention pending deportation in a transfer procedure according to Art. 28 (2) Dublin III Regulation.

In light of the provisions of Article 5 Dublin III Regulation, which serve to protect the asylum seeker in a Dublin transfer, the individual subject to a Dublin transfer decision must be seen to have a subjective right to a personal interview. Before such an interview, which must take into account the subjective perspective of the individual, has been conducted in a manner which meets the criteria of Article 5 of Dublin III, the authorities cannot conclude that no obstructions to the removal are present. 

The case examines the allegations of a Guinea-Bissau national who sought asylum in Belgium, that the remedies he tried in order to challenge the lawfulness of his detention in Belgium were neither speedy nor effective, in violation of Article 5 para 4. He further complained under Article 3 that his deportation to Greece would place him at risk of ill-treatment and under Article 13 that he did not have an effective remedy. 

The Asylum Court upheld the Federal Asylum Agency’s rejection of the mother and son’s application on the basis that Poland was responsible for the application under the Dublin II Regulation. The Court held that Austria was not obliged to apply Article 3(2) Dublin II Regulation due to a threatened violation of Article 3 or Article 8 ECHR. 

The rules on safe third countries, according to which applications for international protection in the event of a threatened violation of Art 8 ECHR must not be refused on the basis of formal safety in another country, is to be applied similarly to the Dublin II Regulation. If the Applicant already has subsidiary protection in one Member State, in accordance with the Dublin II Regulation his application in a different State in which his son, who is a minor and entitled to asylum, is living, (in addition to the Applicant’s pregnant wife) must not be refused.  On the contrary, this State must make use of the right to assume responsibility for the examination.