Case summaries

Not all cases with an international element can establish jurisdiction under the Convention; an assessment of exceptional circumstances on the basis of the specific facts of each case is required.

The applicants do not have any connecting links with Belgium and their sole presence in the premises of the Belgian Embassy in Lebanon cannot establish jurisdiction, as they were never under the de facto control of Belgian diplomatic or consular agents. Jurisdiction under Article 1 ECHR cannot be established solely on the basis of an administrative procedure initiated by private individuals outside the territory of the chosen state, without them having any connection with that State, nor any treaty obligation compelling them to choose that state.

The applicant claims that the original Court neither made a detailed analysis of the applicant's political action – that gave rise to the persecution and, consequently, the asylum application – nor of the subsidiary protection application.

The recursive claim was declared unfounded by the Central Court, which found that there was no evidence of persecution or systematic human rights violations in the country of origin.

The discretionary clause in Art. 17 II Dublin-III regulation might under certain circumstances oblige the member states to take charge of an applicant. This can be particularly the case, if the competence of the member state under chapter III of the Dublin-III regulation would not be given because of a deadline expiry the applicant had no influence on.

According to the new 10 September 2018 French Law on Controlled Migration, there will be no criminal proceedings against individuals who have helped in the movement and illegal residence of undocumented migrants, when the aid consisted in providing legal, linguistic or social advice or assistance, or any other aid provided for an exclusively humanitarian purpose.

Criminal immunity is thus defined in a much less restrictive manner, and shall apply to acts committed before the entry into force of the new law.

Court ruled upon the correct test to use when considering returns to Palestine.

The Constitutional Council decided on the criminal exemptions in favour of persons involved in the crime of assisting aliens to irregularly stay in a country. The first sentence of article L. 622-4 of the code of entry and stay of foreigners and the right to asylum (CESEDA) is unconstitutional as it must include not only the assistance to irregular stay in a country but also the assistance to the movement of aliens being in an irregular situation. The Council also specifies, in relation to the third paragraph of the above-mentioned article, that it is to be applied to any act assisting aliens to irregularly stay when motivated by humanitarian purposes. The Council hence enshrines the constitutional value of the fraternity principle. 

In this case, the Supreme Court allowed the State’s appeal against a High Court Judgment in which the Refugee Appeals Tribunal was found to have erred in law in its approach to determining persecution. The Supreme Court allowed the State’s appeal on the basis that the tribunal member’s finding of no risk of persecution was not unreasonable (within the applicable standards of judicial review) and that the High Court was incorrect in finding that the extent of educational discrimination at issue in this case met the threshold of persecution required.

D.T., who possesses a leave to remain in Poland due to humanitarian considerations, appealed the Municipal Appeal Board’s decision to uphold the decision refusing to award her child benefits. Relying on a purposive interpretation of the applicable regulations regarding social welfare and the access of foreigners to the labour market, the Court decided to set aside both decisions, while stressing that the deciding body shall be bound by the legal analysis contained in the Court order. 

A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.

When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.

In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.

Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law. 

Due to systemic deficiencies in the Maltese asylum system, a responsibility on the part of the German authorities to examine the asylum application exists by virtue of the sovereignty clause in the Dublin III Regulation.