Case summaries

Even after the introduction of Art. 3 (3) AsylG, the previous legal practice with regard to persons who justify their asylum application by refusing military service or desertion in their home country continues to be valid. Accordingly, a conscientious objection to military service or desertion cannot establish refugee status on its own, only if it is associated with persecution within the meaning of Art. 3 para. 1 AsylG.

The case concerns an appeal of an Algerian woman to the Council of State, against a decision taken on the 17 June 2013 by the National Court of Asylum (CNDA), who rejected the appeal against the Office for the Protection of Refugees and Stateless Person’s (OFPRA) decision concerning the applicant’s application for asylum.  

The Council of State annulled the decision of the CNDA, stating that before finding the existence of a reasonable possibility for the applicant to find internal protection in another region of her country of origin, the Court should have looked into which part of the Algerian territory the applicant could, in all safety, access, settle, exist and lead a normal family life without the fear of being persecuted or being exposed to the risk of serious violence from her ex-husband.

Provisional centres are a type of immigration detention centre and European law does not mandate ex novo a specific type of detention.

Directive 2008/115/EC imposes an unconditional right on Member States to provide separate housing to detained persons who are part of a family unit. Conditions on such housing such as “if possible” and “the centre has modules able to guarantee the family’s unity and privacy” are invalid.

Detention centres are free to choose whether the police may act as guards in the centre. If they do so, the police will follow their internal rules regarding the carrying of firearms.

A detained person can only be detained for the second time if such detention is based on new grounds, in which case the detention period can be extended to the maximum legally permitted period of time.

The power to suspend a detained person’s right to communicate when they do not comply with internal regulations can be exerted without a court warrant.

For the search of a detained person to be justified, two requirements must be met: (i) it must be a necessary means to preserve the order and security of the centre and (ii) it must be justified by the previous behaviour of the detainee .

National legislation may impose a list of unauthorised objects on detainees.

The case concerns an expulsion order from Romanian territory issued against a Turkish applicant, and his placement in an administrative detention centre

The Court found that there was no violation of article 5(4) ECHR as the applicant had been given the opportunity to challenge the legality of his detention

However, it found that article 5(1)f) ECHR had been violated as the applicant had been detained for a further three months after the rejection of his asylum claim. 

The applicant challenged by way of judicial review the decision of the Refugee Appeals Tribunal (hereinafter RAT) (adverse credibility findings) on the grounds that it failed to have reasonable regard to the documents submitted.  The Court held that the Tribunal failed to provide reasons rejecting a medico-legal report and further held that the Tribunal’s analysis of documentary evidence supportive of ethnicity submitted was wrong in fact.  The Court quashed the decision of the Tribunal.  

There is no basis to differentiate between the treatment of asylum seekers depending on whether they applied for asylum straight after crossing the border or after being placed in a detention centre. If a third country national applied for asylum from a detention centre, they can be released on the basis of article 88 section 2 of the Law on granting protection to foreigners in the territory of Poland, which states that asylum seekers shall not be placed in a detention centre, if there is a presumption that they were subject to violence.

In case of a presumption that a person is a victim of violence there is no need for “unequivocal evidence” for this legal condition.

The court cannot resign from an expert opinion if establishing a relevant fact for the case requires it. As a result the court cannot reject all the opinions or conclusions of the only opinion in the case and adopt its own view to the contrary. If the Court of Appeal had any doubts regarding the available psychologist’s opinion they should have requested the psychologist to complete the opinion or called a new expert.

Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland within 30 days. If this obligation is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. Only the return decision can be forcibly executed.  Therefore, the present decision does not pose a direct threat of irreparable consequences for the applicant.

Taking into account the character of the procedure before an administrative court - within which facts of the case are not being established, but only points of law can be litigated and the applicant is represented by a professional legal representative – it cannot be stated that the absence of the applicant would limit his right to court.

An applicant’s interest in remaining in a Member State pending a decision on their right to remain will prevail if, due to a lack of knowledge about the actual living situation of refugees in the third country and negative public reports regarding such situations, there can be no assurance that the applicant will be safe in said third country.

The State is obliged to adopt legislation which allows the refugee to actually exercise the right to respect for family life in its territory. Under Article 53(3) of the Constitution of the Republic of Slovenia the scope of family life firstly includes the nuclear family and secondly, where specific factual circumstances dictate, members of the family who are not nuclear but who are similar or perform the same function.

The legislator limited the right to family reunification by enacting an exhaustive definition of eligible family members for reunification, excluding any other form of family unity.  According to the Constitutional Court, the legislator disproportionately restricted the right of refugees to respect for family life and violated the right of the appellant under the Article 53(3) of the Constitution.

In light of the provisions of Article 5 Dublin III Regulation, which serve to protect the asylum seeker in a Dublin transfer, the individual subject to a Dublin transfer decision must be seen to have a subjective right to a personal interview. Before such an interview, which must take into account the subjective perspective of the individual, has been conducted in a manner which meets the criteria of Article 5 of Dublin III, the authorities cannot conclude that no obstructions to the removal are present.