Case summaries

The right to be heard entails the obligation of the court to take note of the arguments put forward by the parties and to take these arguments into consideration when taking its decision. While this does not require the court to explicitly address every single fact put forward by the parties, the grounds of the decision have to refer to the essential issues raised by such facts.

In case of a single mother and her four minor children facing deportation to a country where beneficiaries of international protection had to live under difficult conditions, these personal circumstances of the applicants are of key importance to the legal evaluation. Independently of the question, whether deportations to Bulgaria were, in light of the current conditions, generally permissible, the provisions of Art. 21 et seqq. of the Reception Conditions Directive clearly stipulated that the concerns of families with children had to be given particular consideration.

Consequently, under such circumstances a court was required to specifically set out why it assumed that the family would be guaranteed suitable accommodation that excluded the possibility of health risks and met the needs of a family with children. Otherwise, the decision amounts to an infringement of the applicant’s right to be heard under Art. 103 (1) of the Basic Law.

The Court held that detention is considered to be arbitrary within the meaning of Article 5 § 1 ECHR, if the length of the detention exceeds what is reasonable for the purpose pursued. It is to be examined whether the authorities have acted with ‘due diligence’.

In cases, such as the present, where the detention has been upheld for a long period, although lawfully, authorities are required to take additional steps in order to proceed with an asylum claim more speedily. When the detained person can be considered as ‘vulnerable’ a higher level of ‘due diligence’ can be expected from the authorities. Even if the asylum claimant complicates the examination of his claim by not providing sufficient evidence, the failure of the authorities to take initiative to end the asylum claim, results in a violation of Article 5 § 1 ECHR.

Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.

The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children. 

The Court rejected the Applicant's challenges to the respondent's decision to certify his asylum claim and deport him, on the grounds (i) of his mistaken assessment of his probable situation if deported to Italy, (ii) of his misreading of the Dublin III Regulation, specifically insofar as it applies to effective remedy.   

A grave psychological disease (post-traumatic stress disorder – PTSd) is a reason to grant interim legal protection against deportation, if the applicant is in a state of self-endangerment or potentially suicidal in case of a deportation.

An application to suspend the effects of a decision, contained in an appeal of a decision ordering return and a ban from re-entering the territory of Poland and other Schengen area states should be allowed, due to the validity of the Applicant remaining in Poland pending the conclusion of the administrative court proceedings. Under art. 61 § 3 of the Act on Proceedings before Administrative Courts, the Court may, upon the application of the Appellant, order that the challenged decision be suspended, in whole or in part, if the act or function to be performed would result in a risk of significant harm or other consequences which are difficult to reverse.

Article 17 forms an integral part of the Dublin Regulation and should be applied in a manner which furthers the aims and objectives of the Regulation in general. Article 17 is a justiciable right and should be particularly relied upon in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures of the host Member State. Article 17 is not subject to a prior assessment of non-satisfaction of Article 8 (family reunification) of that same Regulation.

Applicants who engaged with Dublin authorities should be subjected to less onerous standards when assessing the success of an Article 8 ECHR claim.

The UK Upper Tribunal held that there had been a failure of the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation and ordered the Secretary of State to admit the applicant to the UK, based on: (1) the deficiencies of the Italian asylum system in the present case, namely the lack of sufficient expedition to register the asylum application and initiate Dublin proceedings; (2) the deficiencies and delay in the guardianship system in Italy; (3) the expected lengthy procedures for a “take charge” request and subsequent Dublin transfer; (4) the need to take into account the best interests of children.

Both applicants seek legal assistance and to register their application for asylum, which was previously refused by the Alpes Maritimes Prefect. The interim relief judge decided that the Prefect’s refusal to provide the individuals with an application form to register their application for asylum, notwithstanding their presence within the territory and contact with the police, amounted to a serious breach of the right to asylum.  

It was unlawful to detain an unaccompanied asylum seeking child, even in the reasonable belief that he was an adult.

The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa.