Case summaries

Whilst the Appeals Committee believes that the applicant was ‘wronged’ during the administrative procedures in the First and Second Degree (pursuant to Decree 113/2013), the Committee is unable to request a new personal interview, because no such provision exists within the national legislation (Regulation Service of Authority and Appeal 339/2013 opinion of the Legal Council).

Deprivation of liberty as allowed by art. 5.1(f) of the Convention not only has to be with a view to deportation, but it also has to be in compliance with national law, and free from arbitrariness.

The submission of an asylum application does not as such imply that detention is no longer with a view to deportation.

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.  

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court. 

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 Court expressed doubts as to whether it is constitutionally permissible to base the withdrawal of subsidiary protection on a “final conviction of a crime” without taking the circumstances of the individual case into account. The Austrian provision might not be in line with the requirements as set out by the European Union Directive 2004/83/EC and might therefore be unconstitutional.

The Appellant appealed to the Upper Tribunal on the ground that he qualified for subsidiary protection under Article 2(e) and (f) of the Qualification Directive and was therefore entitled to a residence permit under Article 24(2) of the Qualification Directive.

In dismissing the appeal, the Tribunal found that: (a) Article 24 of the Qualification Directive does not confer a substantive right of residence in the member state concerned but rather its function is to determine the modalities whereby a right of residence otherwise existing is to be documented, and (b) the Procedures Directive is a truly adjectival instrument of EU legislation which does not create any substantive rights in the realm of asylum or subsidiary protection.

This case examines the refusal to grant international protection status to a physically disabled, single Egyptian woman. The OIN failed to provide clear, detailed reasoning why the Applicant did not meet the legal conditions to acquire subsidiary protection status in Hungary.

The Metropolitan Court of Public Administration and Labour granted subsidiary protection status to the Applicant and concluded that based on cumulative grounds the Applicant would be subject to torture, cruel, inhuman or degrading treatment or punishment if she returned to Egypt.

In this judgement, the Court held that there was a violation of article 3 of the Convention concerning the detention conditions of the applicant at the premises of the executive subcommittee of the Thessaloniki foreign police. There was also a violation of article 5 para 1 (f) concerning the duration of his detention and para 4 with regards to the judicial review of his detention. 

The court found that the removal of a Somali applicant to Italy under the Dublin Regulation would not result in a violation of article 3of the Convention and would not entail any violation of the rights set in article 1, 2, 5, 6 and 13.