Case summaries

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.

Stateless persons of Palestinian origin who have in fact availed themselves of assistance from the UNRWA and their right to recognition as refugees on the basis of Art. 12(1)(a) of Directive 2004/83

The Court granted permission to the Applicants to seek judicial review of the negative decision made in a written appeal (rather than an oral appeal) in an application for refugee status made by a South African one-parent family. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ and the appeal decision was based on personal credibility and the absence of a nexus to Convention grounds. The Applicants failed in their argument that the absence of an oral hearing may render the appeal decision unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive, because the Applicants had in fact availed of the appeal rather than challenge the fact that it was confined to a written appeal. Leave to seek judicial review was granted on the basis that an aspect of the claim which was disclosed after the first instance decision was not properly considered; that the decision maker made exaggerated credibility findings to the potential detriment of a subsequent subsidiary protection application; and erred in the consideration of country of origin information and evidence of the availability of internal protection.

Transferring the major part of the investigations into the facts of an asylum application to the Court of Second Instance impedes the purpose of an appeal stage. As a specialist authority, the Federal Asylum Agency is obliged to keep up to date with relevant developments under asylum law. Both the departure clause reasons and previous acts of persecution are to be taken into consideration in a decision. With regard to Pakistani members of the Ahmadiyya religious community, the decision by the CJEU in C-71/11 and C-99/11, Federal Republic of Germany v. Y and Z and the right to practise religion in public are to be taken into account.

The Council of State found that a decision to extend the detention of a foreigner was a decision which adversely affected the individual. The principle enshrined in EU law of the rights of the defence applies to the preparation for this decision. Under this principle, according to the Council of State, the facts and circumstances forming the basis for the extension decision must be explained expressly and clearly to the foreigner, along with the legal consequences of the decision. Furthermore, a representative must be notified of the intention to issue a decision to extend detention of the foreigner, to enable the representative to support the foreigner in his response to the extension decision.

The case concerns the removal of a Brazilian national residing in French Guiana (a French overseas département-région) and his inability to challenge the measure before its enforcement.

In a situation of unlawful detention – unlawful because it did not comply with national and European norms on the detention of illegally staying citizens – as well as inhuman and degrading conditions in the Identification and Expulsion Centre, the revolt by the four Defendants should be considered as proportionate and the alleged conduct should be treated as legitimate defence.