Case summaries

Right to remain arises the moment an alien indicates he would like to be granted asylum. This means that an alien, from that time onwards, cannot be refused access to the territory; he may be refused only 'further access', in other words 'actual further entry' to the territory.

Article 10 of Legislative Decree 25/2008 sets out guarantees for asylum seekers as regards procedural access according to which the asylum seeker should be informed not only of his rights and obligations during the procedure but also on the means and times available to him for his asylum application. In addition, section 4 provides for timely information to be given to the Applicant concerning the decision taken by the Territorial Commission. This should be provided in the first language indicated by the Applicant or in one of the four official languages.

This provision has to be respected for the procedure to be valid.

The asylum application of the applicant, a minor suing through her mother, had been deemed withdrawn. An application to have the asylum claim readmitted was refused by the Minister for Justice, Equality and Law Reform. The High Court refused to set aside the decision of the Minister. The applicant applied to the High Court for leave to appeal the matter to the Supreme Court, and/or a reference to the Court of Justice of the European Union (ECJ). The High Court refused both applications.

Insofaras the Federal Asylum Agency did not apply an age-appropriate standard when assessing the credibility of the minor Applicant and did not comply with the particular obligation to provide instruction and the duty of care applicable in the case of a minor, the authority committed a gross procedural error.

This case concerned service of the initial negative decision against an asylum application where the notice was served on the foreign applicant asylum seeker without specifying the language in which the applicant was informed of its content.  The court rejected an application for suspensive effect of the decision rejecting the asylum application in view of the pleas used by the applicant – of Palestinian origin – that he left his country for economic reasons, since there is no evidence that there is a risk of persecution should he return to Palestine, nor have any of the conditions for asylum on humanitarian grounds been met. The possible disruption to the lifestyle the applicant has created for himself whilst working in Greece does not constitute a reason to suspend any of the acts which form part of the asylum application examination procedure. 

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.

According to the Supreme Court, the Defendant failed to provide the Plaintiff with the basic procedural guarantees that are guaranteed to an applicant for international protection in the safe third country procedure as stipulated by the International Protection Act (ZMZ), as well as the Procedures Directive. Neither the reasoning in the contested act nor any other data in the case files show that the Plaintiff was given the opportunity to argue that the Republic of Croatia is not a safe third country for him before the decision to reject his application was issued.

Whenthe Defendant handed over the Plaintiff to the Republic of Croatia without waiting for the decision as regards the Plaintiff's appeal and application for an interim injunction, the Defendant violated the Plaintiff's constitutional right to effective judicial protection and legal remedy as stipulated in articles 23 and 25 of the Constitution of the Republic of Slovenia.

This decision from the High National Court requested the Ministry of Interior to suspend the expulsion of Saharan citizens who lodged an appeal against the rejection of their asylum application. In the appeal, they submitted a precautionary (temporary) measure asking for the suspensive effect of the previous decision which would have resulted in their expulsion from Spanish territory.

A residence permit granted on the grounds of subsidiary protection and an aliens passport granted under the previous Aliens Act (378/1991)31 § to a Democratic Republic of Congo (DRC) national and his family members could not be withdrawn when the family moved from Finland without a prior inquiry into whether or not there were existing grounds for withdrawing the need for subsidiary protection in accordance with the Aliens Act (301/2004) 107 § 2nd clause.