Case summaries

The case concerned detention and detention conditions in Greece for a Turkish asylum seeker of Kurdish origin, who had been tortured in Turkey, and the conduct of the asylum procedure.

The right to an effective remedy under EU law does not require the specific preliminary decision to place an applicant for international protection under the accelerated procedure to be itself subject to judicial review, provided that this decision is reviewable as part of judicial consideration of the final substantive decision to grant or refuse protection.

The asylum application of the applicant, a minor suing through her mother, had been deemed withdrawn. An application to have the asylum claim readmitted was refused by the Minister for Justice, Equality and Law Reform. The High Court refused to set aside the decision of the Minister. The applicant applied to the High Court for leave to appeal the matter to the Supreme Court, and/or a reference to the Court of Justice of the European Union (ECJ). The High Court refused both applications.

Inadequate care and unlawful detention of an unaccompanied minor seeking asylum: the case concerned the conditions in which a minor from Afghanistan, who had entered Greece illegally, was held in the Pagani adult detention centre on the island of Lesbos.

A decision terminating the procedure is unlawful and it is not in the function of providing access to the asylum procedures and the protection of the principle of non-refoulement, if the Asylum authority immediately and automatically as soon as the applicant failed to appear for the personal interview, even though he was regularly summoned and informed of the consequences if he does not appear, issued a decision to close the case, without firstly carrying out reasonable activities within the reception centre in order to establish why the applicant did not attend the interview.

In the event that a national legal norm is not in compliance with EU law, the court does not suspend the procedure for assessment of constitutionality of the disputed provision, but ignores the disputed legal provision and directly uses a clear and unconditional provision of secondary EU law with a direct effect. The obligation to ignore the national norm in such cases also applies to administrative authorities.

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.

According to the Supreme Court, the Defendant failed to provide the Plaintiff with the basic procedural guarantees that are guaranteed to an applicant for international protection in the safe third country procedure as stipulated by the International Protection Act (ZMZ), as well as the Procedures Directive. Neither the reasoning in the contested act nor any other data in the case files show that the Plaintiff was given the opportunity to argue that the Republic of Croatia is not a safe third country for him before the decision to reject his application was issued.

Whenthe Defendant handed over the Plaintiff to the Republic of Croatia without waiting for the decision as regards the Plaintiff's appeal and application for an interim injunction, the Defendant violated the Plaintiff's constitutional right to effective judicial protection and legal remedy as stipulated in articles 23 and 25 of the Constitution of the Republic of Slovenia.

The cases concerned two important issues: whether the processing of the refugee applications had been unlawfully accelerated or prioritised on the basis that the applicants were Nigerian, and whether the applicants were deprived of an effective remedy against the first instance determinations of the applications which was in compliance with Chapter V of the Procedures Directive. The Court found that Article 23(3) of the Procedures Directive permitted prioritisation/acceleration of any category of case and that the refugee appeals procedure in Ireland satisfied Article 39 of the Procedures Directive.

This case involved a challenge to the transposition of the Procedures Directive into Irish domestic law which appeared to be barred by a special time limitation period of 14 days applicable to challenges to asylum/deportation decisions. The Court found that a Member State is entitled to apply a national limitation period even in respect of those cases where the Member State in question has failed properly to transpose the relevant Directive, provided that the limitation period complies with the principles of equivalence and effectiveness. The Court found that the strict 14 day time limit provided for in section 5 of the Illegal Immigrants Trafficking Act, 2000, is not equivalent to the limitation period for judicial reviews in other broadly similar areas (generally 6 months) and is not effective because it is so short a time. In the circumstances, the limitation period could not be pleaded or relied upon against the applicants. 

This case examined the compatibility of the Dublin II Regulation with the European Convention on Human Rights regarding transfers to Greece under the Dublin II Regulation. The Court found that there was a violation of Article 3 ECHR by the Greece Government because of the applicant’s conditions of detention, violation of Article 3 ECHR by Greece concerning the applicant’s living conditions in Greece, violation of Article 13 taken in conjunction with Article 3 ECHR against Greece because of the deficiencies in the asylum procedure followed in the applicant’s case and the risk of his expulsion to Afghanistan without any serious examination of the merits of his asylum application and without any access to an effective remedy. The Court also found in relation to Belgium that there was a violation of Article 3 by sending the applicant back to Greece and exposing him to risks linked to the deficiencies in the asylum procedure in that State, also held against Belgium a violation of Article 3 for sending him to Greece and exposing him to detention and living conditions there that were in breach of that ECHR article. The Court also found a violation of Article 13 ECHR taking in conjunction with Article 3 ECHR against Belgium.