Case summaries

If an application for protection has been heard at first instance and the applicant there had the opportunity of a full examination including a personal interview and was given a transcript or report of the interview; and if it was there determined that the application is manifestly unfounded; then EU asylum law in particular Directive 2013/32/EU allows the national court or tribunal to dismiss an appeal without allowing the applicant  a further opportunity to be heard.

However, a hearing may be conducted if the court hearing the appeal considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the Directive.

The right to be heard does not require, as a rule, that, where national legislation provides for two separate procedures for examining applications for refugee status and applications for subsidiary protection, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place. However, an interview must be arranged where specific circumstances render it necessary in order to examine an application with full knowledge of the facts.

1. An application for asylum lodged in Germany only qualifies as a subsequent application within the meaning of section 71a of the Asylum Act, interpreted in conformity with the constitution, if the first asylum procedure in a country that is generally determined to be a safe third country has actually been conducted in compliance with the 1951 Refugee Convention as well as the European Convention on Human Rights (ECHR).
This is not the case, where, at the time of the decision, there have been systemic deficiencies in the asylum procedures of the third country which have put the applicant at risk of an inhuman or degrading treatment within the meaning of Art. 4 of the EU Charter of Fundamental Rights and Art. 3 of the ECHR.

2. The procedure to determine whether a second asylum procedure is to be conducted also requires a personal interview of the applicant. Such an interview is only dispensable where the Federal Office of Migration and Refugees (Federal Office) can either decide on the basis of the information received on the merits of the decision whether the new application constitutes a new submission or assess already on the basis of the detailed written explanations of the applicant reliably and safely that the submission is clearly and manifestly inconsistent.

The Office of Immigration and Nationality issued a decision on the responsibility of the Republic of Bulgaria under the Dublin III Regulation, without having informed the Applicant about the applicability of the Regulation in his case. The Court quashed the decision and declared the Applicant’s right to be heard was not respected.

Asserting a violation of the procedural rules by the French Office for the Protection of Refugees and Stateless Persons (‘OFPRA’) when a child’s legal representative or any ad hoc administrator was absent from a hearing, the National Court of Asylum (‘CNDA’) annulled OFPRA’s decision and sent the case back to it to be decided again under the correct circumstances.

The CNDA sets out the limits to the principle of family unity in such as it is not applicable to the child of a refugee, the refugee having obtained that status only through application of the said principle following her marriage with a refugee not being the father of the child.

The applicant had sufficiently established that if returned to Hungary under the Dublin Regulation he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. Such a transfer decision thus violated Article 4 of the Charter.

In cases of reasonable suspicion that a person applying for asylum was a victim of human trafficking, the Swiss State Secretary for Migration is obliged to clarify the facts thoroughly on its own initiative.

Dublin III is characterised by the introduction or re-fortification of rights and mechanisms which guarantee the involvement of the asylum seeker in the determination process. Article 27(1) when read in conjunction with Recital 19 is ,therefore, to be interpreted as allowing an asylum seeker to appeal a transfer decision on grounds that the Chapter III allocation criteria were incorrectly applied.

A subsequent application is not admissible unless the interested party presents new facts or elements relating to his personnel situation or to the situation in his country of origin, out of which he could not have had knowledge of previously, and likely, if they have probative value, to modify the appreciation of the legitimacy or the credibility of the application of the interested party.

The director general of OFPRA was right to find that the elements that the applicants presented before him did not significantly increase the probability that they would meet the qualifying conditions to claim protection and that their subsequent applications were inadmissible, without having undertaken a hearing before making the decision on inadmissibility.

In appealing against the Migration Agency’s and the Migration Court’s rejections of the Applicant’s application for leave to remain in Sweden, the Applicant claimed grounds for protection which he/she had not previously raised before the Migration Agency. Claiming grounds for protection meant that special requirements for asylum applications applied and the Applicant was entitled to a personal interview before the Migration Agency. The Migration Court of Appeal referred the Applicant’s case back to the Migration Agency as the Migration Court could not be the body to try the asylum application in the first instance.