Case summaries

Regarding the return of a Turkish applicant from Greece to Türkiye, her account constituted a prima facie case of refoulement, shifting the burden of proof to the Greek Government after evidentiary standards from secret detention cases were applied. The return of the applicant without any individual assessment or access to remedies, despite her asylum request and risk of ill-treatment due to alleged links to opposition movements in Türkiye, amounts to a violation of Articles 3 and 13 ECHR.

The applicant’s unregistered detention at a border guard station, without legal basis, information on the reasons for her arrest, or access to judicial review, as part of a broader Greek pattern of unlawful returns, amounts to a violation of Article 5(1), (2) and (4) ECHR. Although the applicant failed to prove a real risk to life or inhuman or degrading treatment during her removal process – where she travelled by an inflatable boat with other migrants –, the absence of an effective remedy to challenge such risks amounts to a violation of Article 13 ECHR.

In a case concerning a foreign national who had a valid refugee status in Germany, the Dutch Secretary of State ordered them to leave the country and placed her in detention in view of returning her to Germany. The Council of State found that the first instance Court wrongfully declared that Article 59(2) of the Aliens Act of 2000 provided no basis for detaining the foreign national.

Detention within the context of immigration must be lawful, not arbitrary and carried out in good faith. In this sense, the depriavation of liberty without a realistic prospect of removal is against the prevision of Article 5 § 1 of the Convention.

The difficulties in access to the regional telephone operating centers set up by the French Office for Immigration and Integration (OFII) in order to obtain an appointment to register asylum applications leads to legal uncertainty for asylum seekers. This legal uncertainty violates their constitutional right to asylum, and therefore creates an emergency situation on which the Urgent Applications Judge can adjudicate.

Delays in the asylum procedure which cannot be imputed to the asylum seeker, and failure to consider less coercive alternatives when detention exceeds reasonable time limits, render detention unlawful.

The Constitutional Council decides on the constitutionality of the 48H limit under national law for a third-country national to appeal against an order to be escorted to the border. The Council found that the deadline is in line with the French Constitution, as it guarantees the right to an effective remedy.

The Council of State decided on the date from which the 6-month time limit provided by Article 29§1 of the Dublin regulation 604/2013 begins running or when it starts running again in case of an interruption. At the expiry of this deadline, the responsibility of the examination of an asylum claim falls back to the Member State which requested another Member State that charge be taken or to take back, as it did not proceed to the applicant’s transfer.  The Council specified that this deadline starts running once the other Member State has accepted the request that charge be taken or to take back. In case of an appeal, the delay is interrupted and begins running again at the date of the final judgment deciding on this appeal. Following appeals do not interrupt this newly-established delay.

The Federal Administrative Court has to clarify whether the petition for action directed solely at the obligation to decide on the asylum application is admissible. The question if it is also possible to directly oblige the defendant to grant international protection or to establish prohibitions on deportation by means of an action is not the subject of the decision. As a result, the court comes to the conclusion that there was a delay by the respondent of providing the decision on the asylum application without sufficient reason and that the plaintiff has a need for legal protection for its action for failure to act.

The Constitutional Council decides on the constitutionality of the deadline to appeal against a return order, as applicable to a third-country national being detained, under paragraph 4 of Article L. 512-1 of the Code of Entry and Stay of Foreigners and the Right to Asylum (CESEDA). The Council decides hereby that the deadline proves to be too short- consequently unconstitutional- to effectively exercise the right to remedy in the context of detention.