Case summaries

A well-founded fear of persecution may also be based on events that took place after the Applicant left his country of origin (refugee sur place). Sur place evidence refers to circumstances which arose after the Applicant left his country of origin and which are as a rule connected with a change in the situation in the country of origin, but one cannot exclude other events which are closely linked with the person applying for refugee status and which occurred after he left his country of origin.

The French authorities shall use the sovereignty clause in the Dublin Regulation, under the judge’s supervision, when the rules that determine responsibility of a member state for the asylum procedure may infringe on international and national rights guaranteed to refugees and applicants for asylum. In this case a transfer order to Hungary, where the applicant had on two occasions been detained in unsuitable conditions, was held to be an unlawful infringement of the applicant’s right to asylum.

This case concerned the asserted right of an applicant to cross-examine the representative of the State who was presenting the State’s case on appeal to the Tribunal.

The time limit of 21 days to lodge a complete asylum application to the Ofpra [in the framework of the regular procedure] is sufficient.

The decision of the Administrative Court to refuse the applicant an oral hearing was overturned. The SAC held the Administrative Court did not show the Qualification Directive (which was implemented during the proceedings) had been applied and that the Administrative Court failed to take into consideration that as an asylum seeker the applicant had limited possibilities of supporting his claim by submitting written evidence only.

In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a year, the person can appeal to the Tribunal on the grounds that he or she is a refugee in order to ‘upgrade’ his or her status. The Court held that the general principle of equivalence in EU Law requires that the appeal right against the rejection of the claim cannot be restricted to the grounds that the applicant is a refugee but must also allow the applicant to appeal on the grounds that he is entitled to subsidiary protection.

This concerned a claim of persecution as conscientious objector and the use of previous decisions. The first applicant claimed that he faced persecution in Israel because he was a conscientious objector. The Appeals Tribunal Member found that he was only a ‘partial’ objector and referred to a previous decision of his own in which he had entered into a detailed analysis the situation for conscientious objectors in Israel. This previous decision was not made available to the applicants or the legal issues raised were not flagged with the applicants’ legal advisors. The Court found that this previous decision was of such substance, importance and materiality that it ought to have been put to the legal representatives of the applicants for comment before the appeals were determined.

This case concerned fair procedures, namely the right of an applicant to an oral hearing of his asylum appeal. The Court held that a fair appeal does not necessarily impute a right to be heard orally.

It does not follow from any of the provisions of the Asylum Act or the Administrative Procedure Code that the Respondent must deliver a decision to an asylum applicant in his or her mother tongue or a language that he or she understands.

The failure to respect the procedural guarantees provided under Article 3.4 of the Dublin II Regulation constitutes a serious and manifestly illegal infringement of the right of asylum.