Case summaries

The applicant challenged the Belgian Minister of Asylum and Migration’s decision not to grant him a humanitarian visa via an emergency application before the CALL. He relied on the following grounds: inter alia, (i) his medical condition and (ii) the poor living conditions of the West Bank in Palestine.

The CALL decided (i) these two elements justified an urgent decision, (ii) there was a risk of serious prejudice which would be difficult to remedy if the Minister’s decision was enforced, and (iii) there were serious grounds for invalidating the Minister’s decision since denying a visa to the applicant was likely to constitute a breach of art. 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman or degrading treatment), thus fulfilling the three conditions under art. 39/82 of the Belgian Aliens Law 15-12-1980. 

The detention of a Somalian national is declared by the European Court of Human Rights to constitute a violation of Articles 3, 5 (4) and 5 (1). The cumulative effects of the detention conditions amounted to inhuman and degrading treatment and the detention could not be deemed lawful due to the lack of an effective remedy during detention and insufficient justification under Article 5 (1) (f). 

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

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.

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court. 

In order to justify detention, the Ministry must establish that there is a real risk that the applicant will abscond and that this is not simply a presumption. The results of the bone tests can be put to the side if the judge believes that it is impossible to determine the age of the applicant in this manner. 

This is an application for judicial review of a decision made by the defendant local authority assessing the claimant to be an adult. The court reviewed important evidence such as the initial age assessment, together with statements from claimant’s supporting witnesses and the errors of the Italian authorities’ recordkeeping and concluded that the appellant was in fact a minor.

The French National Asylum Court (the “CNDA”)  must assess whether or not the applicant should be granted refugee status or, failing that, subsidiary protection,taking into account all the factual on the basis of the circumstances which are known to the CNDA when it rules. In order to assess the accuracy of the facts reported by an applicant, the CNDA must take into account all evidence presented by an applicant in support of his application. In particular, when an applicant produces circumstantial evidence relating to the alleged risks that he is likely to face if he returns to his country of origin, the CNDA must – after assessing the credibility of such evidence and analysing it in light of the reported facts – assess the potential risks  which the facts reveal and, as the case may be, indicate the elements that led the CNDA to consider these risks to be not sufficiently serious. 

The Court found that there would be no violation of Article 3 in the event of return of the applicant, who suffered from chronic kidney failure and was in need of dialysis three times per week, to Kyrgyzstan.

The applicant challenged by way of judicial review the decision of the Refugee Appeals Tribunal (hereinafter RAT) (adverse credibility findings) on the grounds that it failed to have reasonable regard to the documents submitted.  The Court held that the Tribunal failed to provide reasons rejecting a medico-legal report and further held that the Tribunal’s analysis of documentary evidence supportive of ethnicity submitted was wrong in fact.  The Court quashed the decision of the Tribunal.