Case summaries

The ECtHR found the detention of a homosexual asylum seeker in Hungary was arbitrary, in violation of Article 5(1) ECHR. In particular, the Court found that the Hungarian authorities had failed to make an individualised assessment and to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation. The Court emphasised that the authorities should exercise special care when deciding on deprivation of liberty in order to avoid situations which may reproduce the plight that forced asylum seekers to flee in the first place.

The Applicants applied for asylum in Sweden, stating that they had arrived from Syria. However, investigations showed that the Applicants had entered Hungary via Serbia and applied for asylum in Hungary prior to arriving to Sweden. The Migration Court of Appeal found that the Hungarian asylum procedure and reception conditions did not contain such substantial deficiencies, that it was impossible to transfer the Applicants to Hungary in accordance with the Dublin III Regulation. However, two of the Applicants were small children, and had the Applicants been transferred to Hungary there was an imminent risk of lengthy waiting periods and a long period in custody before the Applicants could have their applications examined, which would have a considerable negative effect on the children’s health and development. Therefore, according to the Migration Court of Appeal a transfer of the Applicants under the circumstances was not consistent with the principle of the best interests of the children. With rejection of the Migration Agency’s complaint, the Applicants’ asylum applications were to be examined in Sweden.

If an Applicant, whilst his asylum application is being processed, is held in a limited area, this may be in contravention of Article 5 of the European Convention on Human Rights (“ECHR”). In determining this, the Court may take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.

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. 

AA claims he was unlawfully detained from 17 February 2015 to 27 February 2015 because he was detained as an unaccompanied child in a way contrary to paragraph 18B Schedule 2 of the Immigration Act 1971.

The decision turned on whether the word “child” in the Immigration Act 1971 was to be interpreted objectively (i.e. is the individual, in physical fact, under 18) or whether the detention’s legality involved the reasonable belief of the immigration officer that the individual is under 18.

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

The applicant’s asylum application was rejected in Croatia and he received an order to leave the country in 30 days. The Slovenian Asylum authority detained the applicant due to the risk of absconding, because he left Croatia before receiving a decision in his asylum procedure. The Court ruled that the applicant’s departure from Croatia was incorrectly assessed as arbitrary absconding (the applicant actually respected the order to leave the country) and therefore the applicant does not present a risk of absconding. The Court also held that the measure was not necessary, that the Asylum authority incorrectly referred to its discretionary powers in this matter and that the objective criteria to determine when someone presents the risk of absconding (from Article 68 of Aliens Act-2) have not been applied.

The Constitutional Court rules that the doubts of the Federal Administrative Court about the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015, which defines the term “risk of absconding” in the context of detention pending deportation pursuant to Section 76 FPG, are unfounded. The Court finds that Section 9a(4) FPG-DVO was adopted on a sufficient legal basis. 

The Court quashed the decision of the Office of Immigration and Nationality (OIN) and ordered a new procedure because of the failure to thoroughly examine every claim presented by the Claimant and the incorrect application of the res iudicata principle.