Case summaries

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.

The cases concerned two important issues: whether the processing of the refugee applications had been unlawfully accelerated or prioritised on the basis that the applicants were Nigerian, and whether the applicants were deprived of an effective remedy against the first instance determinations of the applications which was in compliance with Chapter V of the Procedures Directive. The Court found that Article 23(3) of the Procedures Directive permitted prioritisation/acceleration of any category of case and that the refugee appeals procedure in Ireland satisfied Article 39 of the Procedures Directive.

Based on new evidence (suspicion of trafficking) the Administrative Court returned the applicant’s case to the Immigration Service which had previously decided that Italy was responsible for the application according to the Dublin II Regulation.

The Immigration Service refused an application for asylum deeming the application unfounded as the applicant had mainly based her claim for asylum on economic grounds. The applicant was taken into the System of Victim Assistance during the appeal stage on suspicion the applicant was a victim of trafficking. The Administrative Court held that in line with the Immigration Service’s decision, the application was deemed manifestly unfounded, but due to a suspicion the applicant was a victim of trafficking, returned the case to the Immigration Service for re-examination.

The withdrawal of practical protection against deportation for subsequent applications is lawful and does not represent an infringement of the right to an effective remedy (Art 13 ECHR), if the legality of the withdrawal is examined by the Asylum Court.

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

French legislative provisions concerning the non suspensive effect of the judicial remedy under the accelerated procedure are not manifestly incompatible with the Asylum Procedures Directive and the Reception Conditions Directives.  

The accelerated procedure (in this case, applicants from a safe country of origin) guarantees the individual assessment of the applicant’s situation and their right to a remedy with suspensive effect.

If an applicant raises circumstances that could present a potential breach of Art 3 ECHR it is impossible to reject the application as manifestly unfounded. The case must be considered on its merits and the deciding authority needs to have accurate COI.