Case summaries

The judicial examination of whether subsidiary protection shall be approved requires a thorough assessment of the individual case. This applies in particular for especially vulnerable persons.

The Regional Administrative Court of Upper Austria requests a preliminary ruling of the CJEU concerning the interpretation of Article 29 Directive 2011/95/EU in the context of social assistance for persons entitled to asylum with a temporary residence permit.

1) Must Article 29 Directive 2011/95/EU, entitling persons subject to international protection to the same level of social assistance in the Member State as nationals of this Member State, be interpreted as fulfilling the conditions for direct effect as set out in the CJEU’s jurisprudence?

2) Must Article 29 Directive 2011/95/EU be interpreted in the way, that it opposes national legislation that provides for persons with a temporary residence permit the same level of social assistance as for persons falling under subsidiary protection, while persons with a permanent residence permit are allowed to the social assistance provided for nationals of the Member State concerned?

In countries where there is a high prevalence of female genital mutilation (FGM), as in Nigeria, non-excised persons can be considered as having a well-founded fear of persecution for reasons of membership of a particular social group within the meaning of Article 1A(2) of 1951 Refugee Convention. Refugee status can be granted where there is a considerable risk of excision and insufficient protection against this threat.

The Immigration and Asylum Office unlawfully rejected the claimant’s application for international protection. The court found that the authorities did not objectively assess the evidence and country information provided by the claimant, a Coptic Christian from Egypt. They also failed to correctly interpret the definition of a refugee in accordance with international law and disregarded the special status of the claimant who was an underage applicant.

The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.

In contrast to the obligation to provide information to asylum applicants under the Dublin Regulation, Article 18(1) of the Eurodac Regulation has as its sole purpose and effect the effective protection of the personal data of the asylum seekers concerned. The right of asylum seekers to information contributes, together with the right of communication, the right to rectify and erase the data. 

A new Constitution accompanied by a new Constitutional Court illustrates the existence of a protection system as per the 1951 Geneva Convention in the relevant country.

This case concerned a judicial review challenge of a Refugee Appeals Tribunal decision where the Court held that there must be a thorough analysis as to the forward looking fear of a person being returned to Pakistan on account of their religion.

Asylum seekers cannot be rejected at the border crossing without having the possibility to state reasons for obtaining international protection as well as a precise indication of reasons for the refusal of entry on the entry form. An assessment of the submitted reasons for asylum cannot only depend on an assessment by an interpreter, but must be decided through the responsible authority or court.

The applicant appeals against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application, both denied in compliance with the Law. The applicant has requested residence in Spain on humanitarian grounds given that he has a son who is a minor and is of Spanish nationality. He invokes his right to remain at his son’s side to care for him.