Case summaries
The lower court had erred in law by judging that the administration need not justify having informed the applicant about the possibility to communicate with a representative of the United Nations High Commissioner for Refugees (UNHCR).
The application was in three parts: the applicants asked the tribunal to annul the police commissioner’s decision on how the registration of asylum requests was carried out in Paris; to compel the police commissioner to re-examine the methods of registration; to fine the state €1500. The first two parts of the application were granted but the third was not.
The decision of the Administrative Court Düsseldorf of January 8, 2016 - 23 L 3974 / 15.A, which ordered the removal of the complainant to Bulgaria, breaches his fundamental right under Article 3, paragraph 1 of Basic Law in its manifestation as a general prohibition on arbitrariness. The Administrative Court should have more closely scrutinised the newly available information on the situation pertaining to asylum seekers and persons with international protection status in Bulgaria. The decision of the Administrative Court Düsseldorf is repealed and the case is referred back to the Administrative Court Düsseldorf.
The Federal Administrative Court rules, that the significant risk of absconding for ‘Dublin-detention’ orders must always be assessed on a case-by-case basis. The sole existence of a ground for detention as set out in Art. 76a(2) AuG does not automatically indicate a significant risk absconding. Such an order is unlawful and must be rescinded. The Court ‘warns’ the SEM that the current practices are very concerning and require adaptation.
The fact that the rejection of the applicant’s application for international protection was not communicated to her in a full decision, but only in the form of a mere administrative act, raised an issue of lack of defence and founded the applicant’s request for access to the original document of the decision.
The principle of material continuity applies to the transition from one form of aid to another. A family who has been granted international protection should be accomodated in reception centers for refugees until they benefit from financial assistance and a stable private housing, even if it means extending the deadline to fins accommodation that had been given to them following their recognition as refugees.
The Council of State requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on the compatibility of Belgian Law with Article 5 of Directive 2008/115/EC (the “Directive”). The Directive requires Member States to respect the principle of non-refoulement, as well as ensure that there is a right to an effective remedy.
Under Belgian Law, the Commissioner-General for Refugees and Stateless Persons (the “Commissioner”) can dismiss an asylum application and issue an order to leave the territory (“Return Order”), before any judicial appeals or other asylum procedures have been exhausted.
The question in the current case was whether the relevant Belgian legislative provisions were contrary to the Directive. The proceedings were suspended pending a preliminary ruling by the CJEU (C-77/17 and C-78/17).
The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims. A further right to appeal remained with the Cypriot Supreme Court. The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.
The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR. The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.
The Court found that there had been a violation of Article 3 in relation to detention conditions at Tychero. There was no violation of Article 5(1) insofar as the detention was not arbitrary and was in accordance with a procedure prescribed by law, but there was a violation of Article 5(4) in relation to the ineffectiveness of the judicial review of detention conditions. Further, there was a violation of Article 13 read in conjunction with Article 3, because the Greek authorities had deported the Applicant to Turkey, without verifying whether his asylum claim was still pending.
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.