Case summaries
M’s detention pending deportation, for over 2 years and 8 months, was processed without sufficient safeguards against arbitrariness and delay, resulting in four separate violations of the Convention.
Article 10 of Legislative Decree 25/2008 sets out guarantees for asylum seekers as regards procedural access according to which the asylum seeker should be informed not only of his rights and obligations during the procedure but also on the means and times available to him for his asylum application. In addition, section 4 provides for timely information to be given to the Applicant concerning the decision taken by the Territorial Commission. This should be provided in the first language indicated by the Applicant or in one of the four official languages.
This provision has to be respected for the procedure to be valid.
This case concerned the disproportionate delay in processing the applicant’s claim for asylum on appeal. The applicant was informed that it would take eighteen months for his case to be heard. He lodged an appeal before the Constitutional Court (as a last resort) claiming the right to due process constitutionally guaranteed under Art 24.2 of the Spanish Constitution to enjoy legal process without undue delay.
The failure of an asylum applicant to appear with her children (systematically or repeatedly) when summoned in relation to a transfer order under the Dublin Regulation is considered as absconding and results in the extension of the transfer deadline to 18 months. In this case, the applicant never appeared with her children despite receiving several notifications and, according to the Council of State, she was aware that the presence of her children was crucial in order to proceed with her transfer.
No liability in damages in EU Law under Art 16(1)(b) of the Dublin Regulation arose from the failure to promptly examine an application for asylum where the United Kingdom accepted responsibility for the claim. The obligation in Art 13 of the Qualification Directive to grant refugee status to those entitled to it could not be considered a “civil right” protected by Art 6 of the ECHR in the absence of caselaw from the Strasbourg Court expressly recognising this.
No provision imposes a time limit on the determining authority within which a decision on asylum applications has to be taken. The only obligation, for which no sanction is foreseen, is to inform the applicant when a decision cannot be taken within a period of six months.
When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.
The seven day detention of a ‘temporarily admitted’ asylum seeker under the fast-track procedure was non-arbitrary and consistent with Article 5(1), but the 76 hour delay in providing the individual with the real reasons for his detention did not satisfy the promptness requirement of Article 5(2).
Applicant complained under Articles 2, 6, 13 and 14 of the Convention in relation to the death of her partner while in police custody.