Case summaries
An asylum applicant who was a victim of previous persecution in their country of origin can be granted refugee status under article 1, C 5) of the Geneva Convention. This is because, due to the severity of the treatment applied, the applicant’s fear is exacerbated to such an extent that, even if the persecution has ceased to exist, a return to the country of origin would be unthinkable.
It is within the powers of the interim relief judge to order urgent measures to stop serious and illegal harm to fundamental rights of migrants in Calais.
Effective access to justice relies on an individual having a voice in the proceedings concerning him or her. Solely focusing on the credibility of the appellant’s account and not having regard to objective evidence testifying to the appellant’s vulnerability or the risk to the appellant of return to Afghanistan has led to the proceedings being neither fair nor just. A material error of law has therefore been committed.
If an application for protection has been heard at first instance and the applicant there had the opportunity of a full examination including a personal interview and was given a transcript or report of the interview; and if it was there determined that the application is manifestly unfounded; then EU asylum law in particular Directive 2013/32/EU allows the national court or tribunal to dismiss an appeal without allowing the applicant a further opportunity to be heard.
However, a hearing may be conducted if the court hearing the appeal considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the Directive.
Article 27(1) of the Dublin Regulation is to be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.
The two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests.
An application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.
Article 27 of the Dublin Regulation III allows for an applicant to appeal the incorrect allocation of responsibility for a claim.
The lodging of an appeal against a transfer decision has no effect on the running of the period laid down in Article 13(1). In an appeal against a Dublin transfer which has suspensive effect the period listed in Articles 29(1) and (2) of the DR III does not start running until the final decision on that appeal.
A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims.
A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims.
The Tribunal reasserted the decision maker’s duty of confidentiality in considering documents produced in support of a protection claim. Where there is a needed to make an inquiry in the country of origin then written consent must be given by the applicant. Moreover, Article 22 of the Asylum Procedures Directive prohibits direct contact with the alleged actor of persecution. Additionally, the Refugee Convention requires that the authentication of a document is undertaken with a precautionary approach, namely whether an inquiry is necessary or should be framed in a specific manner and whether there is a safer alternative. Ultimately, disclosure of personal information should go no further than is strictly necessary.
The Tribunal found that the respondent was unlikely to have breached confidentiality in her inquiries into the authenticity of the documents produced; and that if she had, the remedy would not be the grant of refugee status; and that the appellant had not established that he had a credible case for asylum on the basis of the documents submitted. Nonetheless the Tribunal highlighted that a failure to comply with the duty of confidentiality might be relevant to the overall assessment of risk on return.
The situation in Iraq may be considered as being an internal armed conflict thus justifying the grant of subsidiary protection.