Case summaries
The safe third country ground under Article 33(2)(c) of Directive 2013/32 is optional; an application may be declared inadmissible on that basis even if the applicant qualifies for international protection, but it cannot be rejected as unfounded on that ground.
Article 38 requires national law to define criteria establishing a sufficient connection between the applicant and the third country to make transfer reasonable.
Article 38(2)(b) and (c) of Directive 2013/32 permits reliance on publicly available sources and executive lists of safe third countries, provided that national law sets out a methodology for an individualised assessment of safety and allows the applicant to challenge the existence of the required connection.
Courts hearing appeals must verify the existence of such a connection, even if national law does not expressly grant that power.
Violation of Article 8 regarding the right to respect for family life, arising from a domestic court order for the return of two children from Finland to Russia under the Hague Child Abduction Convention.
The Court ruled that Malta violated Article 3, 5 and 13 of the Convention given the fact that the applicants, who were minors, endured inhumane detention conditions, lacked an effective remedy to challenge their detention, and faced unlawful deprivation of their liberty.
A three-day time limit, including public holidays and non-working days, for lodging an appeal against a decision rejecting an application for international protection as manifestly unfounded under an accelerated procedure is incompatible with Article 46(4) of the Asylum Procedures Directive where it restricts the effective exercise of the rights guaranteed in Article 12(1)(b) and (2), and Articles 22 and 23 of that Directive.
Article 4(1) of Directive 2004/83 requires the determining authority, under its duty of cooperation, to obtain up-to-date country of origin information and, where relevant, a medico-legal report on the applicant’s mental health; a breach of that duty does not automatically lead to annulment unless it may have affected the outcome.
Under Directive 2005/85, delays in the asylum procedure cannot be justified by legislative changes and, on their own, do not warrant setting aside a decision absent an impact on the outcome.
Article 4(5)(e) of Directive 2004/83 means that a false statement later explained and withdrawn at the first opportunity does not, by itself, undermine the applicant’s general credibility.
The Committee found a violation of Article 3 of the Convention against Torture (non-refoulement), considering that the State party failed to address the individual circumstances and risk profile of the complainant, namely the fact that she was a woman of conscription age and a “failed asylum seeker”, when ascertaining whether her return to Eritrea would pose a risk of torture and inhuman and degrading treatment. Also, it observed that the State disregarded her asylum claim relying on the report’s findings, which did not meet the impartiality required as evidentiary proof.
Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.
In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of serious harm.
Detention beyond the period for which an individual would otherwise need to be detained pursuant to Schedule 2 § 16(1) for the purpose of an age assessment that will or doesn’t comply with applicable legal standards would be unlawful. Also, both common law and section 55 of the BCIA 2009 require a fair and careful process involving appropriate safeguards, which the Guidance doesn’t provide and is also inconsistent with the Secretary of State for the Home Department (SSHD) pre-existing polices.
The assessment for a well-founded fear of persecution under the Refugee Convention must have regard to Country-of-Origin information and reports. Moreover, if the publication of the applicant’s name will have no adverse effect on either him or his family, the appellant’s private life rights, protected by article 8 ECHR, will not outweigh the public interest in open justice, as protected by article 10 ECHR.
The High Court found that the Tribunal failed to ask itself the correct legal questions when assessing the issue of state protection in the applicants’ country of origin.
In specific, the High Court found that the Tribunalfailed to apply the correct approach to the ‘state protection test’ found in section 31 of the International Protection Act, 2015, by not seeking to establish whether an effective system of protection is in place, which is non-temporary in nature and which involves the taking of reasonable steps to protect those who otherwise faced a real risk of persecution or serious harm.