Case summaries
Member States can issue a return decision together with, or right after, a negative decision on an asylum application at first instance, as long as they ensure that all judicial effects of the return decision are suspended during the time allowed to appeal and pending that appeal.
During that period, and despite being subjected to a return decision, an asylum applicant must enjoy all the rights under the Reception Conditions Directive. The applicant can rely upon any changes in circumstances affecting his claim that came up after the return decision, before the appeals authority.
The detention of three Sri Lankan nationals on grounds of public order before their removal from Cyprus was found to be lawful by the Court. However, the Court found that the applicants did not have at their disposal an effective remedy by which they could challenge the lawfulness of their detention, in violation of Article 5(4) ECHR.
Courts must establish the current situation of the region from which the complainant originates or which can be considered as an internal flight alternative and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of a Sunni Iraqi, the lower instance court did not sufficiently consider the complainant’s region of origin, the possibility of return to that region or the possibility of internal flight. Thereby the court violated the right to equal treatment among foreigners.
Requests for family reunification must be examined even if the third-country national, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban. Whether there is a relationship of dependency between the third-country national and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis.
The rescuing actor is not only responsible for the search and rescue operations but should also consider the safety of disembarkation points in line with the principle of non-refoulement. The Open Arms ship conducted a reasonable assessment of the situation during the rescue operation, given that Libya could not be considered a country where the rescued migrants could be safely returned and Italy had already communicated an available place of safety.
it should be assessed whether the migrants – if rescued by the Libyan authorities - would have been taken back to a country where there are ongoing severe violations of human rights. In the case at issue, Libya has to be considered such a country. the rescuing actor is not only responsible for the SAR operations but also for the designation of a POS (place of safety) for the migrants to be disembarked at. the principle of non-refoulement had to be applied. the decision to communicate with the Italian authorities, which were the first interlocutor with the Open Arms during the entire operation, including during the disembarking phase, is considered reasonable.
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.
The Judge of the liberty and detention of the Nîmes Court of Appeal declared irregular the procedure during which the applicant, who couldn’t read, was not properly informed by the police of his rights to apply for asylum and his right to free access to the telephone at the detention centre.
For the assumption of reasonable internal flight alternatives, a case-by-case assessment must be made on the basis of sufficient findings about the expected situation of the asylum applicant in the country of origin. On the basis of general information on the situation in the country of origin, a young, healthy man with school education and professional experience and who is familiar with the local conditions, can in principle be expected to resettle in Kabul.
To not allow young adults who have been refused asylum to terminate their studies deprives Article 8 ECHR of all weight, an Article which protects an individual’s professional training and personal development. Even if the right to stay of a student is not protected by Article 8, the termination of a qualifying training which is on the horizon falls under the scope of private life within the ECHR. Therefore, the transfer of the applicant to a return centre would prevent her from finishing her schooling, ruining her 7 years of studies and would constitute a harm difficult to repair.
The applicants although minors were detained in a detention facility where they were mixed with adults. The detention lasted until the Maltese government determined (in a process that took 8 months) that they were minors.
Moreover, the harsh conditions in the detention facilities amounted to inhuman or degrading treatment.