Case summaries
Violation of Article 8 regarding the right to respect for family life, arising from a domestic court order for the return of two children from Finland to Russia under the Hague Child Abduction Convention.
The assessment for a well-founded fear of persecution under the Refugee Convention must have regard to Country-of-Origin information and reports. Moreover, if the publication of the applicant’s name will have no adverse effect on either him or his family, the appellant’s private life rights, protected by article 8 ECHR, will not outweigh the public interest in open justice, as protected by article 10 ECHR.
To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR. If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.
States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court.
The current case concerns the expulsion of Mr. Arif Savran “the applicant” from Denmark to his country of origin, Turkey in 2015 because of his criminal convictions in Denmark. The applicant argued that his expulsion to Turkey had been in violation of Article 3 and Article 8 of the European Convention on Human Rights because he was suffering paranoid schizophrenia and that he was a “settled migrant”.
The Court found that expulsion of the applicant to Turkey did not violate Article 3 under the Paposhvili threshold test, because the evidence was not “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk… resulting intense suffering or to a significant reduction in life expectancy”. Also, there was no evidence to show that applicant was causing harm to himself.
In relation to the violation of Article 8, the Court found that Danish authorities failed to consider the mental conditions of the applicant and the applicant expulsion to Turkey violated his “private life” under the Article 8 of the Convention.
The Court decides that the maximum period of detention for the purpose of removal of a person on the grounds of public policy or public security under Belgian law, according to which Union citizens and their family members are treated in the same way as third-country nationals subject to a return procedure, exceeds the principle of proportionality and thus does not comply with EU law.
The Court finds that third-country nationals without a valid residence title in a Member State are illegally present in that Member State and thus fall under the scope of the Return Directive, irrespective of the situation or the measures that led to the illegal presence of the person concerned. Against this backdrop, the Court holds that a deportation order cannot uphold an entry and residence ban without there being any return decision for the applicant which is thus incompatible with the Return Directive.
Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.
The Return Directive does not prevent a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.
The automatic application of domestic provisions regulating expulsion following a criminal conviction may amount to a violation of Article 8 where the impact of the removal measure on the family and isses of proportionality are not sufficiently assessed. In this assessment, the best interests of the child should bear significant weight.
The State Secretariat of Migration (SSM) is obliged to assess the proportionality of a cessation measure in a case of a granted temporary residence in Switzerland. It was concluded that the cessation of temporary residence is not proportionate, when the applicant showed considerable efforts to integrate in the host community such as learning languages and practicing several internships to obtain a job in that country. His return would hamper all those integration efforts.