Case summaries

The Court of Appeal in Warsaw and the court of the first instance agreed that the detention of the applicant and her two children was unlawful from the moment the respective court decided on prolonging their detention as irregular migrants, although they have already applied for international protection.

Both courts agreed also that the amount of compensation for unlawful detention is dependent on the degree in which the state contributed to the trauma of the applicants and their inconvenience. In the present case, taking into account the available psychologists’ and psychiatrist’s opinions, the Courts decided that the poor health condition of the applicants was to a great extent caused by traumatic events experienced before coming to Poland – which eventually resulted in granting them refugee status.

However, the Court of Appeal decided to significantly increase the amount of compensation granted to the applicants, especially children, who were particularly vulnerable in this situation. 

The detention of an asylum-seeker who claimed he had been tortured because of his sexual orientation was unlawful in part.

The procedural dimension of Article 8 ECHR as well as the investigative and evidence gathering obligations on Member States within the Dublin III Regulation require the Secretary of State to proactively and expeditiously undertake steps to verify familial links. Passiveness in this regard will lead to an unlawful decision making procedure.  

The Upper Tribunal ordered the Secretary of State for the Home Department to immediately admit four vulnerable Syrians from an unofficial migrant camp in France to the United Kingdom in order to be reunited with refugee family members during the examination their asylum applications. Although they had not applied for asylum in France or been subject to Dublin procedures, the particular circumstances meant that failing to do so would lead to a disproportionate interference with their right to respect for family life. 

The failure of Fedasil to accommodate an asylum seeking child led to a risk of violating his Article 3 rights. There was a prima facie case that he had lodged an application for asylum and was, thus, entitled to material reception conditions. 

The Applicants asked the Administrative Tribunal of Lille (the “Tribunal”) to order the relevant authorities to take urgent interim relief measures to guarantee the fundamental freedoms of the population of the Calais camp.

The Administrative Judge  acceded to several of the applicants’ demands (identification of vulnerable minors, hygiene, cleanliness, emergency vehicle access) and held that the situation in the Calais camp constituted a grave and blatantly illegal breach of the right of the persons residing there not to be subjected to degrading and inhuman treatment.

There is a real risk that, due to overcrowded accommodation, Hungary can no longer receive returning Dublin claimants. Because of inadequate shelter, the claimant and her two minor children may be subjected to accommodation conditions which contravene Article 3 of the European Convention on Human Rights. Before the return of a vulnerable Dublin claimant occurs, Hungary must first be asked to provide guarantees of adequate shelter. 

In this case, the European Court of Human Rights (ECtHR) revisited the conditions of Mogadishu, Somalia as it relates to an alleged violation of Article 3 of the European Convention of Human Rights (ECHR).

In the specific case, the ECtHR held that:

1) While the general conditions of Mogadisuh remain serious and fragile, objective reports support the finding that such conditions are not sufficient to find a violation of Article 3 of the ECHR; and

2) While the ECtHR acknowledged that the applicant in the present case faces a different threat as a woman and that several objective reports described the serious and widespread sexual and gender-based violence in the country, the Court was concerned with the applicant’s credibility.

The Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively) when examining a Dublin transfer. A possible breach can be linked to personal circumstances of the asylum seeker and does not necessarily have to be caused by a systemic failure of the asylum system in the receiving country. A Dublin transfer is forbidden if there is a real risk of a breach of Art. 3 ECHR.

A single mother and her five minor children must be considered as particularly vulnerable and cannot be transferred from Austria to Hungary.

The High Court approved of the claimant asylum seekers' and the defendant Secretary of State's consent order for settlement. The defendant accepted responsibility for failing to remove the claimants from the DFT, despite indicators that they were vulnerable and not suited to the DFT, and for failing to inform them about the National Referral Mechanism (NRM).