Case summaries

The Dublin regulations do not allow for priority to be given to the processing of different types of transfer applications. In particular, there is no priority which favours a transfer application made on the Applicant’s own initiative as compared to one which is ordered by administrative compulsion. In deciding the application, the executing authority must allow the Applicant to transfer without administrative compulsion if it appears certain that (i) the Applicant will voluntarily travel to the Member State responsible for reviewing his application and, (ii) will report in a timely manner to the responsible authority. A transfer without administrative compulsion is not a deportation (Abschiebung), and therefore does not result in a statutory ban on entry and residence under Sec. 11 of the Residence Act (Aufenthaltsgesetz).

The appeal against the transfer of an asylum seeker from Germany to Hungary in the accelerated Dublin procedure is granted and suspensive effect applied to the decision. The applicant may face a risk of inhuman or degrading treatment because of systemic deficiencies in the asylum procedure and reception conditions in Hungary following the entry into force of new Hungarian laws on 1 August 2015, and because of the risk of further removal to Serbia.

The Court of Appeal upheld the High Court’s judgment in reaffirming that the procedural rules governing an appeal against a negative decision on asylum conducted under the Detained Fast Track (DFT) system are ultra vires and thus unlawful.

This Case examines the refusal to grant refugee status to a Nepalese national. The Tribunal failed to provide clear, cogent reasoning for the decision. Documentation and explanations provided by the Applicant were not included in the decision. Unreasonable assumptions were made by the Tribunal including: as the Applicant’s wife, children and brother were safely residing in the country of origin, this inferred that the Applicant could do the same; since the applicant spent 6 years living safely in India, he could continue to live there safely. The High Court criticised the procedural approach by the Tribunal and the lack of coherent reasoning provided. The High Court granted leave and quashed the Tribunal’s decision.

In this case, the European Court of Human Rights (ECtHR) analysed:

1) whether the conditions that the applicant faced when he was detained in Latvia violated Article 5(1) of the European Convention of Human Rights (ECHR); and

2) whether the appellate proceedings violated Article 5(4) of the ECHR. 

Although the ECtHR held that the conditions in Latvia’s detention centre complied with Article 5(1) and that the appellate courts provided an effective review of the applicant’s detention under Article 5(4), the ECtHR nevertheless found that the appellate proceedings failed to provide the applicant with a speedy decision under Article 5(4). 

The Administrative Court judged that a full and rigorous examination of the consequences of transferring the applicant back to Italy is required, given the delicate and evolving situation in the country. As this was not done the prefecture’s decision to refuse to examine the asylum application and send her back to Italy was annulled. The case was remitted to the prefecture for re-examination. 

The general director of The French Office for the Protection of Refugees and Stateless Persons (OFRA) appealed at the Council of State against the decision of the National Court of Asylum Law which granted M.A refugee status following the non-consideration by the court of the documents provided by the OFPRA in a foreign language (English).

The Council of State cancelled the court decision noting that it is incumbent on the Court to ask for a translation when  necessary.  

The right to be heard prior to the adoption of a return decision, implies that the administrative authority places the foreign national in a position to present, in a useful and effective manner, his point of view on the illegality of his residency and the motives which will be likely to justify the authorities abstaining from taking a return decision.

It does not, however, imply that the administration has the obligation to put the interested person in a position to present his observations in a manner specific to the decision obliging him to leave French territory or on the decision of placing him in detention pending the execution of the expulsion measure as long as he has been heard on the illegality of his residence or the prospect of expulsion

A span of more than three-years between the filing of the appeal against the expulsion order and the original scheduling of the initial oral hearing of such appeal violated a plaintiff’s right to a trial without undue delays, in accordance with the criteria identified by the Spanish Constitutional Court in its settled case-law for determining whether a procedural delay is undue. These criteria consider, among others, the complexity of the case, the average duration of similar proceedings and the nature of the plaintiff’s interest at stake. 

The procedural guarantee in Art. 4 of the Dublin Regulation (EU) No 604/2013 is mandatory. The guarantee concerns the asylum seekers right to information when they present an application for international protection.

This safeguard is not respected solely because the applicant has undergone a personal interview, he needs to be given the “Common Leaflet”. This aims at guaranteeing that the information has been delivered in a proper way and in a clear and objective manner.