Case summaries
In appealing against the Migration Agency’s and the Migration Court’s rejections of the Applicant’s application for leave to remain in Sweden, the Applicant claimed grounds for protection which he/she had not previously raised before the Migration Agency. Claiming grounds for protection meant that special requirements for asylum applications applied and the Applicant was entitled to a personal interview before the Migration Agency. The Migration Court of Appeal referred the Applicant’s case back to the Migration Agency as the Migration Court could not be the body to try the asylum application in the first instance.
The failure of Fedasil to accommodate an asylum seeking child led to a risk of violating his Article 3 rights. There was a prima facie case that he had lodged an application for asylum and was, thus, entitled to material reception conditions.
This case is concerned with whether the decision to deny the asylum application and the subsequently imposed entry ban were justified based on articles 1F(a)-(c). Under these provisions the Secretary of State can raise national security as a ‘serious ground’ for his decision if an element of ‘personal participation’ can be proven.
The Court found that the applicant would face a real risk of ill-treatment contrary to Article 3 ECHR if extradited to Kyrgyzstan, having regard to the various reports from UN bodies and international NGOs assessing the situation in the country.
Taking into account all the circumstances of the case, the Court found that the detention conditions of the applicant did not amount to a breach of Article 3 ECHR. However, Malta’s domestic law remained in violation of Article 5 § 4 ECHR as it did not provide an effective remedy to challenge the lawfulness of the detention. The applicant’s detention after being granted subsidiary protection for a further 5 days was a violation of Article 5 § 1 ECHR.
This case is concerned with whether the Secretary of State for Justice has discharged or breached his duty of care with regards to the risk of refoulement in an asylum application.
The Supreme Court quashed the detention and deportation warrants issued against a citizen from the Congo, following a number of prosedural failures by the Cypriot Government to comply with the Cap. 105 of the Alien and Migration Law and Directive 2008/115/EC, denying him the opportunity for voluntary departure.
No obligation rests upon the asylum seeker to voluntarily and of their own accord go to the Member State that will examine the asylum application under the Dublin Regulation as this obligation rests primarily on the Member States. Neither the failure to leave, nor the lack of adequate resources, can form the basis for a custodial measure.
The question remains open and needs to be clarified in legal proceedings, whether there are systemic flaws in the Bulgarian asylum procedure and conditions of admission, such as pose a risk of infringement of Article 4 Charter of Fundamental Rights of the European Union (CFR) (cf. Article 3(2) Regulation No. 604/2013(Dublin III)) – in particular in the case of a return under the Dublin system.
The provisions on responsibility for unaccompanied minors in Article 6 of the Dublin II Regulation are protective of the individual, as they not only govern relationships between Member States but (also) serve to protect fundamental rights.
Where there has been an unlawful rejection of an asylum application as inadmissible on grounds that another Member State is responsible under Section 27a of the German Asylum Act, this cannot be reinterpreted as a (negative) decision on a subsequent application under Section 71a of the Asylum Act, because of the different adverse legal consequences attached.