Case summaries

The fact that the rejection of the applicant’s application for international protection was not communicated to her in a full decision, but only in the form of a mere administrative act, raised an issue of lack of defence and founded the applicant’s request for access to the original document of the decision.

In case of conflict between a domestic and international norm the Court is obliged to adhere to the latter and set aside the former. Given the well-established right to an effective remedy in international and European instruments, an element of which relates to the remedy’s timeliness, the court is obliged to remake the OIN’s subsidiary protection decision and provide the applicant with refugee status. This conclusion applies notwithstanding that domestic legislation prohibits the Court from reforming an OIN decision. To abide by this legislation would result in a never-ending appeal procedure thereby rendering the remedy ineffective.

The Council of State requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on the compatibility of Belgian Law with Article 5 of Directive 2008/115/EC (the “Directive”). The Directive requires Member States to respect the principle of non-refoulement, as well as ensure that there is a right to an effective remedy.

Under Belgian Law, the Commissioner-General for Refugees and Stateless Persons (the “Commissioner”) can dismiss an asylum application and issue an order to leave the territory (“Return Order”), before any judicial appeals or other asylum procedures have been exhausted.

The question in the current case was whether the relevant Belgian legislative provisions were contrary to the Directive. The proceedings were suspended pending a preliminary ruling by the CJEU (C-77/17 and C-78/17). 

The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims.  A further right to appeal remained with the Cypriot Supreme Court.  The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.

The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR.  The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.

The Court found that there had been a violation of Article 3 in relation to detention conditions at Tychero. There was no violation of Article 5(1) insofar as the detention was not arbitrary and was in accordance with a procedure prescribed by law, but there was a violation of Article 5(4) in relation to the ineffectiveness of the judicial review of detention conditions. Further, there was a violation of Article 13 read in conjunction with Article 3, because the Greek authorities had deported the Applicant to Turkey, without verifying whether his asylum claim was still pending. 

The Court found a violation of Articles 3 and 5(4) ECHR in relation to the Applicant’s detention conditions at Fylakio and Aspropyrgos, and the shortcomings of domestic law in relation to the judicial review of his detention. 

A court’s decision on a request for suspensive effect of an appeal against a deportation order does not affect the expiration of the 6-month period set out in Art. 29(2) of the Dublin III Regulation. According to German law, a deportation order ceases to be effective upon expiration of this 6-month period.

The detention and proposed expulsion of a Kyrgyzstani national are declared by the European Court of Human rights to constitute a violation of Article 3 and Article 5 of the Convention. The expulsion would be a violation of Article 3 due to the discrimination, persecution and human rights abuses against the ethnic Uzbek group, to which the applicant belongs.

The mistreatment of the applicant during detention and a lack of investigation into the mistreatment constituted a violation of both the substantive and procedural limbs of Article 3.

The deprivation of liberty during detention could not be deemed lawful under Article 5 as domestic law was not deemed foreseeable in its application.  

The Court found that Article 4 had been violated because of delay by national authorities in formally recognising that the Applicant was a victim of human trafficking, and because of failings of the police and the courts in prosecuting the individuals suspected of being responsible. Further, Articles 6(1) and 13 had been violated because of delays in the length of criminal proceedings against those individuals, and because the Applicant did not have recourse to an effective remedy to complain about this.

The Court found a violation of Article 3 in relation to a subsequent application for asylum, which had been rejected on the basis that it contained no new elements indicating that the Applicants ran a real risk of being subjected to inhuman and degrading treatment or punishment on deportation to Russia. Because new information had in fact been provided, the national authorities were under an obligation to thoroughly review the information in order to assure themselves that the Applicants’ rights under Article 3 would be safeguarded.