Case summaries

This case examined the compatibility of the Dublin II Regulation with the European Convention on Human Rights regarding transfers to Italy under the Dublin II Regulation.

The Court found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the Swiss authorities were to send an Afghan couple and their six children back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

The case considered an application against the decision of the Secretary of State denying the Claimants a right of in-country appeal against the removal of the Claimants to Italy under the Dublin Regulation. The Claimants argued that their removal to Italy would expose them to a real risk of a breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The court found that there was no evidence to rebut the presumption that Italy would comply with its obligations under EU laws or of special vulnerability in the personal circumstances of any of the Claimants, to support the assertion that Article 3 of the ECHR would be breached by the Claimants’ removal to Italy. 

The interest of an applicant to obtain a temporary stay from deportation to Italy for the time being predominates, if the applicant, in case of his return back to Italy, would be threatened with serious damage to his health due to inadequate accommodation opportunities there and because medical care would not be guaranteed due to a permanent overstretch of resources.

An application for international protection lodged by an Afghan who illegally entered Austria was rejected. The Court found that the applicant had no well-founded fear of persecution in his country of origin nor was he to be granted the subsidiary protection status.  

The French authorities’ failure to conduct an adequate inquiry into the Applicant’s medical evidence resulted their dismissal of the credibility of the Tamil applicant, who, according to the ECtHR, would face a real risk of treatment contrary to Article 3 if returned to Sri Lanka.

In this case there was a serious risk that the Applicants’ asylum claims, which in principle should have been readmitted in Hungary in accordance with the Dublin II Regulation, would not be dealt with by the Hungarian authorities in accordance with all the guarantees required by the respect for the right to asylum. The French authorities therefore needed to grant them a temporary right of residence for asylum-related reasons.

In the case of the first Applicant, the exceptional personal circumstances dictate round the clock highly qualified medical care, which is provided by health care institutions in Slovenia, while home care is provided by the second Applicant. If such a sick person were forced to leave the stable conditions in Slovenia and start living in a collective centre in BiH, the first Applicant could suffer inhuman or degrading treatment due to inappropriate health care, which would represent serious harm, which in turn justifies subsidiary protection in Slovenia.

In the event that the second Applicant was returned to the country of origin, she would be separated from the first Applicant (i.e. her family) contrary to the fundamental principle of family unity. Apart from this, in the event of returning to BiH or to a collective centre in BiH, it would be reasonable to believe that, as a young Roma female without a family and means for survival, she would also be subjected to inhuman and degrading treatment due to the discrimination against the Roma population.

On the basis of the general situation in Afghanistan and the lack of cogent reasons to depart from the findings of fact of national courts, the applicants would not be at risk of treatment contrary to 3 ECHR if returned from the UK to Kabul (Afghanistan)

The Respondent's evidence on the safety situation in Kabul and the possibilities for seeking employment, finding somewhere to live and establishing social networks provided the grounds for the Respondent's decision as well as for the judgment by the court of first enstance, both of which stated that the Applicant, in the event that he returned to Kabul, in his country of origin, would be provided with internal protection from serious harm, and that he is thus not entitled to subsidiary protection in the Republic of Slovenia.

Owing to a violation of the right to respect for private life, the expulsion of the Applicants was declared permanently unlawful. On the grounds of Art 8 of the ECHR, the Asylum Court emphasised the significance of illnesses and their treatment (outside the context of Art 3 of the ECHR) in the host country and in doing so also referred to the disadvantagouss effects of the discontinuation of  psychotherapy by the applicant mother on the child. With reference to the best interest of the child, the Asylum Court made it clear that, in the case of children, roots to the host country could be developed more quickly than for adults, in particular if especially formative parts of childhood and young adolescence were spent in the host country.