Case summaries
The judgment deals with the admissibility of the execution of an expulsion order of an Eritrean who illegally left the country. Despite the assumption that the entry into the national service in the country of origin constitutes forced labour within the meaning of Art. 4 para. 2 ECHR, enforcement is permissible since there was no flagrant violation of Art. 4 para. 2 ECHR.
Following on from a Rule 39 measure from the European Court of Human Rights preventing the transfer of the applicant to Bulgaria under the Dublin Regulation, the Tribunal ordered the police prefect to register the applicant's claim for asylum in France.
The applicant, an Algerian national convicted in France for terrorism and banned from entering French territory in 2006, was sent back to Algeria in 2014, on the day he was notified of the rejection of his asylum claim and of the issuance of his return order. The Court found that the French authorities violated Article 34 of the Convention by carrying out the applicant’s transfer despite the Court’s interim measure. It also found that France violated Article 3, in the light of the general information regarding the situation of people suspected of international terrorism in Algeria.
The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system.
Courts must establish the current situation of the region from which the complainant originates or which can be considered as an internal flight alternative and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of a Sunni Iraqi, the lower instance court did not sufficiently consider the complainant’s region of origin, the possibility of return to that region or the possibility of internal flight. Thereby the court violated the right to equal treatment among foreigners.
The request submitted by the Italian authorities to Norway to take back the applicant would imply his immediate repatriation to his country of origin, Afghanistan, which, in the light of the Court’s reasoning, is not to be considered a safe country.
The fact that a person cannot be repatriated under Article 3 of the ECHR does not imply that that person should be granted a leave to reside in the host country by way of subsidiary protection under Directive 2004/83. The person concerned is eligible for subsidiary protection only if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate health care.
§ 104 para. 13 S. 1 of AufenthG (Residence Law) impedes the claim of a person with subsidiary protection for the assessment of a case of non-refoulment referring to the situation in the state of origin according to § 60 Abs. 5 AufenthG and Art. 3 ECHR in order to enable family reunion due to the lack of a defensible interest.
The complainant, an Eritrean citizen and a single woman with a one-and-a-half-year-old child, filed a complaint against the decision of the Danish Immigration Service to reject her application in accordance with the Danish Aliens Act art. 29 (b) as the Greek authorities had granted her refugee status in Greece, valid until 25 November 2017. The complainant referred to the UNHCR EXCOM-conclusion no. 58/1989.
The Board did not find that the general social and economic conditions for refugees with a residence permit in Greece – although difficult – in itself could lead to the complainant not being referred to Greece as first asylum country. The Board did not find that the complainant as a single mother with a one-and-a-half-year-old child was to be considered quite particularly vulnerable. Consequently, the Refugee Appeals Board found the conditions for using Greece as first country of asylum fulfilled. The case was, however, remitted to the Immigration Service by the Appeals Board in May 2018 upon the Service's confirmation that they would consider the application in light of the applicant's residence permit having expired in Greece.
The rescuing actor is not only responsible for the search and rescue operations but should also consider the safety of disembarkation points in line with the principle of non-refoulement. The Open Arms ship conducted a reasonable assessment of the situation during the rescue operation, given that Libya could not be considered a country where the rescued migrants could be safely returned and Italy had already communicated an available place of safety.
it should be assessed whether the migrants – if rescued by the Libyan authorities - would have been taken back to a country where there are ongoing severe violations of human rights. In the case at issue, Libya has to be considered such a country. the rescuing actor is not only responsible for the SAR operations but also for the designation of a POS (place of safety) for the migrants to be disembarked at. the principle of non-refoulement had to be applied. the decision to communicate with the Italian authorities, which were the first interlocutor with the Open Arms during the entire operation, including during the disembarking phase, is considered reasonable.