Case summaries

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.

The non-suspensive effect of a decision not to further examine a subsequent application under Article 32 of the 2005 Asylum Procedures Directive is not in violation of Articles 19(2) and 47 of the Charter since the decision’s enforcement will not lead to the applicant being removed and is therefore unlikely to expose the applicant to a risk of inhumane treatment.

The provisions on responsibility for unaccompanied minors in Article 6 of the Dublin II Regulation are protective of the individual, as they not only govern relationships between Member States but (also) serve to protect fundamental rights.

Where there has been an unlawful rejection of an asylum application as inadmissible on grounds that another Member State is responsible under Section 27a of the German Asylum Act, this cannot be reinterpreted as a (negative) decision on a subsequent application under Section 71a of the Asylum Act, because of the different adverse legal consequences attached.

The transfer of an applicant for asylum to Malta violates the Regulation (EU) no 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III Regulation”) because Malta’s asylum procedures and system show systemic deficiencies with the inherent risk of subjecting an applicant for asylum to inhuman or degrading treatment.  

The Court ruled that when deciding whether the subsequent application is admissible, new facts regarding the individual situation of the applicant or her situation in the country of origin as well as change in the situation of the country of origin alone are significant. When examining whether the grounds of the first and the subsequent application are the same, the essence of the facts is important, not the manner in which they are presented.

With regard to the applicant’s argument that in the present case the legal grounds for granting subsidiary protection were not examined, the Court stated that in the decision on discontinuing the procedure because of inadmissibility of the application, the authorities do not rule on refusal of refugee status, therefore there is no self-standing legal basis to examine the grounds for granting subsidiary protection. The present application, as the inadmissible one, could not have led to the in-merit examination of the grounds for granting refugee status and therefore could not have included the examination of the subsidiary protection grounds.  

Considering the general situation in the country and the circumstances specific to the Applicant, the ECtHR held that there were no serious and current grounds to believe that she would be at real risk of treatment contrary to Article 3 upon her return to Nigeria. 

The provisions of the Asylum Procedures Directive have been fully transposed into the CESEDA. A decision of the OFPRA based on all the documents/ evidence submitted by the applicant in support of his subsequent application without an interview does not infringe Article 41(2) of the Charter. When OFPRA considered the subsequent application, it was legitimate for it to have rejected the application without any interview since the new documents/ evidence provided were without merits. The Court found that M.A’s application must be rejected without any need to re-examine the facts he submitted, including those in his first application. The application of M.A was rejected.

This case involved a violation of the right to equal treatment of foreigners as a result of a rejection of the application for international protection and expulsion of the homosexual Applicant to Nigeria because of a failure by the decision-maker to make its own country determinations and to thoroughly examine the situation of homosexuals in Nigeria.

The Court found that the decision refusing protection and containing a return order issued to an asylum seeker, whose spouse obtained a temporary residence permit within a regularisation action, would infringe his right to respect for family life, as defined in the ECHR. 

The case concerns a Syrian Kurd’s detention by Cypriot authorities and his intended deportation to Syria after an early morning police operation on 11 June 2010 removing him and other Kurds from Syria from an encampment outside government buildings in Nicosia in protest against the Cypriot Government’s asylum policy.

The Court found a violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights taken together with Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) due to the lack of an effective remedy with automatic suspensive effect to challenge the applicant’s deportation; a violation of Article 5 §§ 1 and 4 (right to liberty and security) of the Convention due to the unlawfulness of the applicant’s entire period of detention with a view to his deportation without an effective remedy at his disposal to challenge the lawfulness of his detention.