Case summaries

The Administrative Court considered the removal of a Sri Lankan from the UK to Cyprus under the Dublin Regulation. The applicant had been recognised under UNHCR’s mandate as being a refugee in Malaysia but had subsequently travelled via Thailand, Syria and Cyprus to the UK. The Court found that there was no legitimate expectation under the UK’s Mandate Refugee policy to consider his claim in the UK. Further, applying the principles in MSS v Belgium and Greece and KRS v UK, it found that the evidence was insufficient to establish that he faced a risk of onward refoulement from Cyprus to Sri Lanka or that detention conditions or living conditions in Cyprus should prevent his removal. 

The state cannot remove an applicant for asylum if the conditions of Art 31 of 1951 Refugee Convention are met.

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

The court found that a prohibition of deportation under Section 60 (2) of the Residence Act (corresponding to Art. 15 (b) of the Qualification Directive) was established due to the existence of a general risk of persecution in case of return to Syria. The Administrative Court, in their assessment of risk, went far beyond the prevailing case law, particularly that of the High Administrative Courts.

A particular mode of persecution cannot be detected in Syria due to the arbitrariness and the juxtaposition of different intelligence services, whose impact cannot be predicted.

A further deterioration of the situation has occurred in light of recent developments and the bloody suppression of the protest movements.

Currently even persons who have not been politically active in exile are, with considerable probability, at risk of being arrested on return, not only for a short period - they are also at risk of torture and other inhuman treatment.

The applicant could not substantiate the individual elements of his claim with respect to his well-founded fear of a blood feud; however, he was able to satisfy the criteria for subsidiary protection. As a result of the armed conflict that was ongoing in the respective province in his country of origin (Ghazni, Afghanistan), the high intensity of the indiscriminate violence was deemed to be sufficient to be a threatening factor to the applicant’s life. As a result, the criteria of subsidiary protection were fulfilled.

The applicant’s claim for refugee status was rejected as Convention grounds were not established, however, subsidiary protection was granted in the alternative by the court on the basis of grave human rights violations and the prohibition of torture (Art 3 of the European Convention on Human Rights (ECHR)).

The court accepted the argument that by granting a lower protection status (tolerated status), even if the applicant qualifies for subsidiary protection, the asylum authority violates Art 15 (b) and (c) of the Qualification Directive (Art 61 (b) and (c) of the Asylum Act)

A transfer to Greece within the framework of the Dublin Regulation was stopped due to the conditions for asylum seekers in the country.

This applicant in this case was HIV positive. He was receiving treatment in Ireland while he was an asylum-seeker. Challenging a deportation order made against him, he claimed that he would be exposed to serious discrimination and stigmatisation in Nigeria and would have difficulty accessing treatment in public hospitals because of discriminatory attitudes of medical staff towards persons with HIV/AIDS.

The Court held that an inferior standard of medical treatment resulting from discriminatory attitudes towards a particular social group does not amount to persecution for a 1951 Refugee Convention reason unless it was associated with an unwillingness or inability on the part of the relevant authorities to protect members of the group from such ill-treatment.

The Court also found that it is only in exceptional cases that stigmatisation and discrimination on the part of even a large number of individuals constituted ill-treatment which comes within the scope of the prohibition in section 5 of the Refugee Act 1996 or the protection of Art 3 of the European Convention on Human Rights and probably would require a minimum level of severity and clear evidence that the ill-treatment was so endemic and institutionalised as to raise a presumption that it was official policy or condoned by state authorities.

The withdrawal of practical protection against deportation for subsequent applications is lawful and does not represent an infringement of the right to an effective remedy (Art 13 ECHR), if the legality of the withdrawal is examined by the Asylum Court.