Case summaries
The Supreme Court granted the cassation complaint lodged by the Polish Ombudsman in the case of a persecuted journalist forced to leave the country together with her son and accused of deception in order to obtain attestation of false information (in a form of a visa issued by a Consul). The Supreme Court agreed that there was a reasonable doubt with regard to the circumstances of the case and the guilt of the defendant. In the view of the Court, even if the defendant acted in a way which could be defined as deception in order to obtain attestation of false information, the circumstances of the case, the statements of the defendant and her clarifications should lead to a question whether the defendant could have acted in a state of necessity (i.e. the sole means by which she could have safeguarded an essential interest from a grave and imminent peril was to sacrifice another interest of lesser importance) while leaving the country.
The following question is referred to the CJEU under the expedited procedure provided for in Article 105 of the Rules of Procedure:
Does Article 26 of the Dublin Regulation III prevent the competent authorities in a Member State, who have requested another Member State to take responsibility under a take back or take charge request of an applicant who has applied for international protection (which has not yet been ruled definitely upon) or any other person caught by Article 18(1)(c) or (d), from taking a transfer decision and notifying the applicant before the requested State has accepted the take back or take charge request?
The applicants’ detention under Article 5 (1) was arbitrary and did not ensure the principle of legal certainty; lack of information was contrary to Article 5 (2) and impaired their ability to challenge the detention decisions in violation of 5 (4). The conditions at the reception centre and the boats did not amount to a violation of Article 3, as the applicants’ stay was very short and there were not sufficient indications.
There was no violation of Article 4 Protocol 4, as the applicants have had a genuine and effective possibility during the entire procedure to raise concerns regarding obstacles to their return to Tunisia; there was similarly no violation of Article 4 Protocol 4 in conjunction with Article 13, since the applicants’ complain would solely relate on the collective nature of their expulsion and not to any real risk of treatment contrary to Article 2 & 3 in Tunisia.
The Court quashed the decision of the Office of Immigration and Nationality (OIN) based on the fact that it did not meet its duty to actively provide the Applicant the possibility to resolve contradictions in his statements, as required by Article 16 of the Recast Procedures Directive (RPD).
Article 3 ECHR is triggered in cases involving the removal of a seriously ill individual where the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.
Access to sufficient and appropriate medical care must be available in reality, not merely in theory and the impact of removal on an applicant must be assessed by considering how an applicant’s condition would evolve after transfer to the receiving State.
1. Do the ‘international obligations’, referred to in Article 25(1)(a) of Regulation No 810/2009 1 of 13 July 2009 establishing a Community Code on Visas cover all the rights guaranteed by the Charter of Fundamental Rights of the European Union, including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations which bind the Member States, in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention Relating to the Status of Refugees?
A. In view of the answer given to the first question, must Article 25(1)(a) of Regulation No 810/2009 of 13 July 2009 establishing a Community Code on Visas be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights of the European Union or another international obligation by which it is bound is detected?
B. Does the existence of links between the applicant and the Member State to which the visa application has been made (for example, family connections, host families, guarantors and sponsors) affect the answer to that question?
D.T., who possesses a leave to remain in Poland due to humanitarian considerations, appealed the Municipal Appeal Board’s decision to uphold the decision refusing to award her child benefits. Relying on a purposive interpretation of the applicable regulations regarding social welfare and the access of foreigners to the labour market, the Court decided to set aside both decisions, while stressing that the deciding body shall be bound by the legal analysis contained in the Court order.
The applicant was detained in the airport of Turkey when entering the country due to the fact he previously stayed in the country with an irregular immigration status.
During his detention he was subjected to overcrowding, unhygienic conditions and lack of proper food and medical attention, a situation could amount to inhuman or degrading treatment.
Asylum authority’s decision regarding the application of the safe third country principle quashed. The Court pointed out that the application of the STC principle is ‘absolutely unacceptable.’
The applicant, who committed crimes while being in Kyrgyzstan, is imprisoned in Russia and is at risk of being returned to his home country in spite of the fact that he could be subjected to torture or inhuman and degrading treatment.