Case summaries

France – Council of State, 25 November 2003, M. N, No 261913
Country of applicant: Armenia

When a transfer under the Dublin Regulation would result in a violation of fundamental rights, the Member State in which the applicant is present can examine the asylum application even though another State should have been responsible under the Dublin Regulation. In this case, the applicant’s wife was allowed to remain in France as she was in the advanced stage of pregnancy and, therefore, transferring the applicant would violate Art 8 ECHR.

Date of decision: 25-11-2003
UK - Court of Appeal, 11 November 2003, R (Bagdanavicius) v Secretary of State for the Home Department (CA) [2005] EWCA Civ 1605
Country of applicant: Lithuania

The Court of Appeal gave guidance on the relevant factors to consider in assessing claims for protection against persecution from non-state actors under the Refugee Convention and Article 3 of the ECHR.

Date of decision: 11-11-2003
UK - Court of Appeal, 14 July 2003, B (R on the application of) v Mayor and Burgesses of the London Borough of Merton [2003] EWHC 1689
Country of applicant: Ivory Coast
This case sets out the requirements for a fair assessment of age when an undocumented individual‘s claim to be a child is disputed.
Date of decision: 14-07-2003
UK - House of Lords, 23 March 2003, Sepet & Anor, R (on the application of) v Secretary of State for the Home Department [2003] UKHL 15
Country of applicant: Turkey

The 1951 Refugee Convention does not provide protection in respect of claims of conscientious objectors who feared imprisonment for their refusal to undertake military service where there is no alternative service offered in national law. This was the position even if that objection is to all forms of military service and is absolute. The right to conscientious objection was not yet protected in international human rights law and was yet to emerge as a principle of customary international law. A claim may succeed if the applicant would be required, in the course of military service, to conduct military action that breached the basic rules of human conduct or if the punishment they would receive for refusal to serve was discriminatory or disproportionate. Secondly, when assessing whether persecution was “for” a Convention reason the decision-maker should ask the question of “what was the real reason for the persecution?”. The decision-maker should not limit the enquiry to the persecutor’s motivation but should look for the effective reason or reasons.

Date of decision: 23-03-2003
UK - Court of Appeal, 18 March 2003, Q and others, (R on the appplication of) v the Secretary of State for the Home Department [2003] EWCA Civ 364

This case considered of the support available for asylum seekers. It was held that the system in place was not procedurally fair and that Art 3 of European Convention on Human Rights (ECHR) was engaged. Judicial review of the refusal was not an adequate remedy for refusal of support where the administrative procedure was unfair and inadequate.

Date of decision: 18-03-2003
ECtHR - Öcalan v Turkey, Application no. 46221/99, 12 March 2003
Country of applicant: Turkey

The applicant was the leader of the PKK and the most wanted person in Turkey. He was arrested and sentenced to the death penalty. Breaches of Articles 3, 5 and 6 were found with regard to his detention, the imposition of the death penalty and his rights as the defence to a fair trial.

Date of decision: 12-03-2003
UK - Court of Appeal, 23 January 2003, FP (Iran) & MB (Libya) v Secretary of state for the Home Department, [2007] EWCA Civ 13
Country of applicant: Iran, Libya
Fairness requires that an applicant in a protection claim is not bound by the procedural error of his legal representative. Procedural rules should not result in unfairness to asylum seekers.
Date of decision: 23-01-2003
Belgium – Council of State, 27 November 2002, Nr. 113.002
Country of applicant: Congo (DRC)
The Council of State confirmed that a new element, in a subsequent application  (Art 51/8 of the Belgian Aliens Law – see comments section below) can relate to facts or situations that occurred after the last phase of the procedure in which the applicant could have submitted them and also consist of new evidence relevant to an earlier situation.

The Council also found that the Immigration Department can only reject, at the phase of taking into consideration of an application, the elements that are not new in the sense of Art 51/8 or that are manifestly irrelevant.
Date of decision: 27-11-2002
ECtHR - Al- Nashif v Bulgaria, Applciation no. 50963/99, 20 September 2002
Country of applicant: Bulgaria, Syria

After the revocation of his residence permit due to his religious activities (alleged links with a fundamentalist organisation), the applicant was detained for a period of 26 days and later deported from Bulgaria. The applicant claims to have been refused access to a lawyer and to have been detained incommunicado. He also claims that his detention and deportation was an interference with his right to family life and right to religious freedom. 

Date of decision: 20-09-2002
UK - Court of Appeal, 26 July 2002, El-Ali v Secretary of State for the Home Department [2002] EWCA Civ 1103
Country of applicant: Lebanon, Palestinian Territory
Art 1D of the 1951 Refugee Convention only applies to Palestinians who met two criteria. First of all, they had to have been in receipt of United Nations Relief and Works Agency for Palestinian Refugees in the Near East (“UNRWA”) protection or assistance on or before 28 July 1951 which was the date that the Convention was adopted. Secondly, whilst UNRWA’s mandate continued, if such Palestinians had left UNRWA’s field of operation they would have to show that they were in “exceptional circumstance”; for example if they were prevented from returning to UNRWA’s field of operation.
Date of decision: 26-07-2002