Case summaries

This case concerned the appropriate interpretation to be given to the determination of the Court of Justice in Case C-277/2012, M.M. v. Minister for Justice, Equality and Law Reform in answer to the questions posed by the High Court of Ireland pursuant to Article 267 TFEU.

The Court of Justice answered in the negative the question posed that the duty to cooperate required the decision maker to supply the Applicant with a draft of any possible adverse decision for comment prior to its formal adoption.

However, the Court of Justice also considered the Irish system for protection decision making more broadly and concluded that it was unlawful not to allow for a further hearing of the Applicant in the course of examination of the subsidiary protection application – following the conclusion of a negative decision on an asylum claim.

The High Court held that the appropriate interpretation to be given to the judgment in this regard was that, in order for a hearing to be effective, it would at a minimum, involve a procedure whereby the Applicant was invited to comment on any adverse credibility findings made at the asylum stage; a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection; and a completely fresh assessment of the Applicant's credibility in circumstances where the mere fact that the asylum decision maker had ruled adversely on this question would not in itself suffice or be directly relevant to this fresh credibility assessment.

The Court opined that the finding of the Court of Justice did not suggest that an oral hearing would be routinely required at subsidiary protection stage, but considered it unnecessary at that juncture to conclusively determine the issue.

It was unlawful to refuse to issue a travel document to the holder of subsidiary protection status on the assumption that the person had provided false information prior to the decision on the asylum application and because identity documentation in his file was incomplete.

A beneficiary of refugee status sought family reunification unsuccessfully for her niece and nephew who she referred to as her own children; who had been orphaned; and whom she was not capable of formally adopting owing to the absence of available procedures in Somalia or where they were living in Ethiopia. The children had attained the age of majority after the Application had been made, but prior to a decision. The Minister refused family reunification on the basis that they were not dependent.

The Applicant was successful in her Judicial Review as the Court found that the Minister had erred in restricting the assessment of dependency to the narrow issue of being financially dependent. Dependency should take into account all relevant social, economic, personal, physical, emotional and cultural bonds between the refugee and family member being considered. Furthermore the Minister did not conduct a proper investigation as to what would be objectively required to amount to dependency, and appeared to carry out “no more than an arbitrary evaluation based on no identified criteria”.

The right to pocket money for an asylum seeker whose placement in a private address is permitted by the Migration Office because of justified reasons is part of the right to dignity. Legislation depriving a person of this right is not in line with the Constitution. 

Rules on rights of applicants for international protection (Governmental Decree, Official Gazette no.64/14) determining that financial aid for asylum seekers placed in a private address is to be decreased by 50% might endanger the applicant’s right to human dignity. 

The holding of two Somali nationals in a Maltese detention centre is declared not to be a violation of Article 3 of the Convention; the cumulative effect of the conditions of detention did not amount to inhuman treatment.  The Court accepted that the detention, although lengthy, fell within Article 5 (1) (f). However, the Court declares a violation of Article 5 (4) as the applicants did not have access to judicial review of the decision to detain them, hence they could not challenge the lawfulness of detention. 

The CALL refers to the judgment in the case M. M. vs Minister for Justice, Equality and Law Reform, Ireland, Attorney General by the Court of Justice of the European Union in relation to the interpretation of Article 4 of Directive 2004/83/EC to point out the obligation of Member States to cooperate in establishing the relevant elements in the asylum-seeker's story and thus to carry out a further examination of the specific situation of the asylum seeker.

The case examined the allegations of the applicants that their deportation to Moscow will entail a real risk of refoulement to Afghanistan where they fear treatment contrary to Article 3 of the Convention.  Further, it examined the applicants’ complaints of a violation of their right to an effective remedy in conjunction with Article 3, invoking Article 13 of the Convention.

It is an administrative appeal brought before the High National Court against the Deputy Secretary of the Interior’s decision to dismiss the request to review the ruling which denied the claimant’s right to asylum.

The application for asylum was based on grounds of persecution as a result of the Applicant’s sexual orientation as a Cameroonian national.The application was rejected by the Ministry of the Interior as it was deemed that the claimant’s narrative did not portray personal persecution.

The High National Court reviewed the appeal and ruled that the State had not provided sufficient grounds to reject the validity and effectiveness of the documentation submitted by the Applicant.Therefore, the appeal was upheld and the claimant’s refugee status was recognised.

While an appeal against a refusal to grant international protection is pending, it is unlawful to expel an applicant before the decision on the case has been issued. The foreign national who has been expelled is entitled to a document that will allow his re-entry into Italy.

Membership of a social group is an objective social fact not dependent on members of the group or, if they are not in a position to do so, their next of kin, expressing their membership of that group.