Case summaries

The three-month time limit for take back requests, as prescribed by Article 21(1) of the Dublin III Regulation, will apply as soon as the competent authorities of the relevant Member State have been informed, with certainty, of the fact that international protection has been requested. Where certain responsibilities for the registration of applications have been delegated to a competent legal entity, the authorities will be deemed to have been so informed once the legal entity in question has made a written record of the applicant’s intention to claim asylum. 

The Federal Administrative Court changed its jurisprudence concerning those competence provisions of the Dublin-III-Regulation that can be challenged with a complaint against a decision not to take charge. The Court follows the approach taken by the CJEU in Ghezelbash (C-63/15) and Mengesteab (C-670/16) and allows complaints based on missing the term to request another Member State to take charge (Article 21(1) Dublin-III-Regulation). If successful, the Member State responsible for requesting to take charge will, itself, be in charge to deal with the asylum application.

The Court also held that notifications by the Swiss Ministry for Migration (SEM) stating that the Dublin-procedure has been terminated are considered to be interim acts that can be reviewed until the closing of the complete procedure, if the acting authority provides objective grounds and acts in respect of the principle of good faith.

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?

The applicants appealed the decision to deny family reunification and family extension in relation to the refugee status of their daughter. The Administration denied this claim based on the fact that the applicants have a different nationality than their daughter, which would contravene the requirement established in article 40.a) of Law 12/2009. Article 41 of said Act, however, addresses this specific situation; However, the requirement of developing this provision by regulation had not been complied by Spain. The Court assesses whether this article should be applicable in the current case, despite not presenting the requirement of regulation, and concludes that the similarity of the wording of articles 40 and 41 is enough as to deem the latter applicable.

The applicant, a victim of rape and forced marriage, has a subjective right to reception which allows her to live a life compatible with human dignity in light of her vulnerability and the minimum norms of reception. This right is entirely linked with FEDASIL’s competences to ensure reception is adapted to an individual’s circumstances. The statement of the asbl SOS VIOL clearly justifies why the applicant should be accommodated in a Local Reception Initiative, reception which is better adapted to the symptoms that she suffers from, notably anxiety and fear of men.The criticism of the asbl's statement whilist not providing any pschological assessment themselves, meant that FEDASIL’s decision not to transfer the applicant to adapted accommodation was negligent. 

The applicant is entitled to be transferred to individual accommodation and moral damages in the region of 2.500 euros.  

Article 47 CFR EU requires that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues.

It follows that Article 47 CFR EU requires the Member States to guarantee, at a certain stage of the proceedings, the possibility to bring the case concerning a final decision refusing a visa before a court.

Usually it does not infringe the constitutional right of equality nor the UN Convention on the Rights of Persons with Disabilities, when the residence permit of a disabled foreign national is restricted on grounds of a lack of independent secured livelihood pursuant to §§ 25 (5) 1, 12 (2) 2 German Residence Act.

The detention conditions experienced by two Syrians in the Krasnoye Selo facility amounted to inhuman and degrading treatment in breach of Article 3 ECHR. Moreover, the length of detention in most of the applicants’ cases was between eleven and fifteen months, which exceeded what was reasonably required for the purpose of administrative expulsion.  Furthermore, they had no access to judicial and periodic review of their continued detention. A violation of Articles 5(1)(f) and 5(4) were found.

The ECtHR reviewed if the detention of a family with three children in a border police’s detention facility would be considered as a breach of Article 3 ECHR.

The applicant had fled from Russia and sought international protection from Portuguese authorities.

The request was later denied by the Portuguese Immigration and Borders Service, after issuing a take charge request directed to Finland, the responsible State for the assessment of the applicant’s request according to the DRIII, based on her possession of a short stay visa in Finland.