Case summaries

Ouseley J in the High Court held although the practice and policy of the Secretary of State in operating the Detained Fast Track System (DFT) was not unlawful in its terms, there was room for improvement. The screening process must not only focus on the suitability of a claim for fast-tracking, but it must also consider the impact that a tight timetable and detention may have on the fair presentation of a claim. In addition, lawyers must be allocated to applicants earlier to allow for meaningful instructions to be given and to allow for vulnerable status to be highlighted. Falling short of unlawfulness, the system carried too high a risk that unfair determinations would be made against applicants. 

After an initial refusal, for the re-examination of an asylum application to be admissible:

either, new facts must have arisen since the first decision; or, facts existed prior to the first decision but were rightfully unknown to the Applicant at the time of the first decision, and;

the aforementioned facts are capable of establishing grounds for a re-examination of the case.

The ban on the introduction of new matters in appeal proceedings as stipulated in the Asylum Act does not violate the right of access to the courts contained in the Charter of Fundamental Rights of the European Union as it represents a proportional restriction.

The case concerns a Syrian Kurd’s detention by Cypriot authorities and his intended deportation to Syria after an early morning police operation on 11 June 2010 removing him and other Kurds from Syria from an encampment outside government buildings in Nicosia in protest against the Cypriot Government’s asylum policy.

The Court found a violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights taken together with Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) due to the lack of an effective remedy with automatic suspensive effect to challenge the applicant’s deportation; a violation of Article 5 §§ 1 and 4 (right to liberty and security) of the Convention due to the unlawfulness of the applicant’s entire period of detention with a view to his deportation without an effective remedy at his disposal to challenge the lawfulness of his detention. 

The case refers to an administrative appeal before the Supreme Court brought by the Appellant against the High National Court’s judgment denying the right to asylum and subsidiary protection.

The Appellant is a Cameroonian national.In the application he claims to be a minor and that the grounds for persecution was his sexual orientation.

The Supreme Court upheld the appeal and reversed the challenged judgment.Furthermore the Court ordered a reconsideration of the administrative procedure from the beginning, in order to provide the asylum seeker with legal assistance.

The Charter of Fundamental Rights of the European Union is also applicable to proceedings to issue a return decision and requires a hearing. With regard to an Applicant who is not represented by anyone legally qualified, such an obligation also exists in cases in which an application for an oral hearing was not expressly lodged. This applies in particular when considering questions concerning private and family life in Austria.

The application by the Applicant for the assignment of a legal adviser for the appeal proceedings was rejected by the Asylum Court because it was late, as the Applicant had only submitted the application after the expiry of the one-month transition period. The Constitutional Court annulled the corresponding transitional regulation on grounds of unconstitutionality: a deadline of only one month was too short to deal with the lack of understanding of asylum seekers of the language and law.

The detention of asylum applicants may undermine their ability to claim asylum and that an ‘effective remedy’ requires an appeal with suspensive effect against refoulement in order to prevent irreparable harm, sufficient time to prepare the appeal and effective legal assistance and interpretation.

In the opinion of the Court, generally accepted principles of administrative procedure such as the right of a participant to be heard, the right to comment on the basis for a decision, the right to present evidence in support of one’s claims in a procedure and the right to be informed of the grounds for an administrative act (Resolution 77(31) of the Committee of Minister of the Council of Europe of 28 September 1977) must not be disregarded in the case in question.

Because the Asylum Court refused the appeal only one day after service of the ruling on the appointment of a legal advisor, the Applicant was not granted an appropriate period of time to use the legal advice and any representation in the proceedings and it was therefore made impossible for him to exercise his rights effectively in the proceedings.