Case summaries

The Court held that detention is considered to be arbitrary within the meaning of Article 5 § 1 ECHR, if the length of the detention exceeds what is reasonable for the purpose pursued. It is to be examined whether the authorities have acted with ‘due diligence’.

In cases, such as the present, where the detention has been upheld for a long period, although lawfully, authorities are required to take additional steps in order to proceed with an asylum claim more speedily. When the detained person can be considered as ‘vulnerable’ a higher level of ‘due diligence’ can be expected from the authorities. Even if the asylum claimant complicates the examination of his claim by not providing sufficient evidence, the failure of the authorities to take initiative to end the asylum claim, results in a violation of Article 5 § 1 ECHR.

Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.

The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children. 

The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.

The presumption of minority does not apply when bone testing shows the applicant’s majority and when a doctor does not express doubts on the results. The tribunal did not request further tests. 

In line with its case-law, the CJEU ruled that Article 67(2) TFEU and Articles 20 and 21 Schengen Borders Code must be interpreted as precluding national legislation allowing police authorities to check the identity of any person, within an area of 30 kilometres from that Member State’s land border with other Schengen states, irrespective of the behaviour of the person concerned and of the existence of specific circumstances, unless that legislation lays down the necessary framework for that power ensuring that the practical exercise of it cannot have an effect equivalent to that of border checks.

These same provisions do not preclude national legislation that permits the police authorities to carry out, on board trains and on the premises of the railways, identity or border crossing document checks on any person, and briefly to stop and question any person for that purpose if those checks are based on knowledge of the situation or border police experience, provided that the exercise of those checks is subject under national law to detailed rules and limitations determining the intensity, frequency and selectivity of the checks.

An Eritrean national claimed refugee status in Switzerland as a result of having allegedly been beaten and tortured for his attempt to escape from military service. His attempt to rely on Article 3 of the Convention of Human Rights to avoid an expulsion order issued by the Swiss authorities was denied as a result of his failure to corroborate his story with factual evidence, inconsistencies in his account and the fact that risk of ill-treatment on his return to Eritrea could be mitigated. 

The Secretary of State had appealed the decision of the FTT (supported by the Upper tribunal) on several grounds of error in law. The Court upheld the tribunal on the issue of whether they had considered the gravity of the respondent’s offences  (section 72 of the 2002 Act); but found that the tribunals had indeed erred when considering the application of Article 1C(5) of the Refugee Convention, and on the applicability of Article 8 ECHR. They consequently remitted the case of MM’s deportation to the Upper Tribunal for re-examination in its entirety, based on these errors in the previous decisions. The statement of the referral left open for the respondent the possibility of an appeal on the basis of Article 3 ECHR. 

The applicant is an ethnic Somali and a Sunni Muslim belonging to the Bon Clan from Mesegawayn in the Galgaduud Region, Somalia. The applicant was originally in 2014 granted subsidiary protection by the Danish Immigration Service under the Danish Aliens Act Art. 7 (2). In February 2017, the Danish Immigration Service revoked the applicant’s subsidiary protection.

The account of the applicant regarding his original application was rejected by the Board due to a lack of credibility.

The majority of the Board found probable that the applicant’s daughter if returned to Somalia would be at risk of forced circumcision.

As the primary applicant, the child was granted refugee status under the Danish Aliens Act Art. 7 (1). Consequently, the cohabiting parents were granted refugee status under the Danish Aliens Act Art. 7 (1) with reference to the UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1 (A) 2 and 1 (F) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, published on 22 December 2009 para. 9.

If the applicant comes from a “safe” country, they must be able to prove that there is no protection as understood in the 1951 Geneva Convention, otherwise his application will be rejected. 

The applicant, an ethnic Turkman and an atheist from Aache, Afghanistan had received death threats from local residents close to the imam as well as from his own father because of his apostasy.

The Refugee Appeals Board found that the applicant because of his apostacy would be at risk of being persecuted by local residents, Afghan authorities and the Taleban. Consequently, the applicant was granted refugee status under the Danish Aliens Act Art. 7 (1).