Case summaries

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.

The case concerned a subsequent application for international protection based on the right to a family and private life (Art 8 of the European Convention on Human Rights (ECHR)) The application was rejected as inadmissible by the Ministry of Interior (MOI) on the basis that Art 8 considerations were deemed not applicable in asylum cases. However, the Supreme Administrative Court (SAC) made two important findings. Firstly it held that even if an application was considered to be inadmissible, there was an obligation to evaluate the risk of refoulement under Art 33 of 1951 Refugee Convention. Secondly, as provided by § 14(a)(2)(d) of the Asylum Act, in exceptional cases, to grant international protection for family life reasons, these have to be accepted as new elements in subsequent proceedings.

Expulsion by France of two nationals of Belarus whose asylum claims had been rejected would amount to a violation of Article 3. 

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

Even if the conditions for considering a subsequent application as inadmissible are fulfilled, the Ministry of Interior is still obliged to consider whether the applicant is in danger of serious harm upon return to his or her country of origin.

The applicant lodged an appeal before the Supreme Court challenging the decision of the High National Court to refuse granting refugee status. The refusal was founded on the application of an exclusion clause. It was held that the applicant constituted a danger to Spanish security. This decision examined the conditions required to apply this exclusion clause, namely that it has to be determined that there are “reasonable grounds” to believe that such danger exists.

A potential violation of Art. 3 of the Convention can be found when a person risks to be extradited to a country where practice of ill-treatment of detainees are reported by reliable sources, notwithstanding possible assurances by the involved public prosecutors of that country.

Given the irreversible and particular serious nature of the harm which might occur if risks relevant under art. 3 of the Convention materialise, an effective remedy to avoid such a harm within the meaning of art. 13 of the Convention requires both an independent and rigorous scrutiny of a claim, and a remedy with automatic suspensive effect. 

The case concerned an appeal before the Supreme Court lodged by the Attorney General against the decision of the High National Court to grant refugee status. Status was granted to a Moroccan army deserter on the basis of a well founded fear of persecution on the grounds of political opinion. At issue on appeal was whether refugee status was granted based upon a fear of persecution resulting from the army desertion (which took place in Morocco), or due to the imputed political opinions that had arisen since his desertion (which arose in Spain): i.e. whether the applicant was a refugee sur place.