Case summaries

With regard to the granting of subsidiary protection, the existence of real risks to the rights under Art. 2, 3 ECHR must be examined, which includes the obligation to consider ongoing developments on the basis of available information. If a deterioration of the security situation is disregarded, this could be seen as arbitrariness.

The Court finds that third-country nationals without a valid residence title in a Member State are illegally present in that Member State and thus fall under the scope of the Return Directive, irrespective of the situation or the measures that led to the illegal presence of the person concerned. Against this backdrop, the Court holds that a deportation order cannot uphold an entry and residence ban without there being any return decision for the applicant which is thus incompatible with the Return Directive.

Well-grounded information is of central importance to any decision to exclude a person convicted for criminal matters from international protection in accordance with Article 1 F of the 1951 Refugee Convention.

The fact that many Uighurs who have returned to China have been detained in “re-education camps”, or have otherwise faced the risk of imprisonment and ill-treatment, combined with the applicants’ individual circumstances, establishes substantial grounds to believe that the applicants would be at real risk of arbitrary detention, and inhuman treatment, or even death, if they were removed to their country of origin.

If implemented, the applicants’ removal to China would be in breach of Articles 2 and 3 of the ECHR.

After being notified of his return decision, set to take place on the same day, the applicant requested an interim measure on Article 3 ECHR grounds in the morning but was nonetheless expelled to Morocco in the afternoon. The Court found no violation of Article 3, regarding the applicant’s expulsion to Morocco, by taking into account subsequent information. It found a violation of Article 34 of the Convention, owing to the fact that the applicant had no sufficient time to file a request to the Court, hence running the risk back then of being potentially subjected to treatment prohibited by the Convention.

Article 3 has not been violated in a case concerning the deportation of an individual who had been convicted of a terrorism-related charge to Morocco. However the ECtHR acknowledges that ill-treatment and torture by the police and the security forces still occur, particularly in the case of persons suspected of terrorism or of endangering State security.

The applicant, an Algerian national convicted in France for terrorism and banned from entering French territory in 2006, was sent back to Algeria in 2014, on the day he was notified of the rejection of his asylum claim and of the issuance of his return order. The Court found that the French authorities violated Article 34 of the Convention by carrying out the applicant’s transfer despite the Court’s interim measure. It also found that France violated Article 3, in the light of the general information regarding the situation of people suspected of international terrorism in Algeria.

The applicant’s asylum claim has been rejected on the grounds of Article 1F(c) of the 1951 Refugee Convention. The act he committed would amount to being contrary to the purposes and principles of the UN. However, the Council of State hereby decided that in failing to seek and qualify the severity of this act in the light of its effects internationally, the lower court made an error of law.

In cases of deportation to a third country, the competent authority is required to assess, on a case-by-case basis, if the third country offers effective legal protection against deportation to the state of origin.

In the case of a Turkish journalist of Kurdish origin, the competent authority had only insufficiently assessed if the applicant enjoys sufficient legal protection in Brazil against refoulment to Turkey. It therefore violated her right to be heard.

The CJEU in this case expanded on its previous ruling of B & D. Whereas previously the scope of the exclusion clause for those engaging in terrorist acts was limited to engaging in, conspiring to or planning an actual act of terrorism with an international dimension, the CJEU has now widened the scope to include those who provide logistical support even where no act of terrorism takes place.