Case summaries
The Supreme Administrative Count in the case concerning housing for a refugee ruled that the applicant, as a refugee, has found herself in a very specific situation, which was not taken into account by the authority. The applicant was not able to submit all the documents and information about the members of the family who stayed in Chechnya in order to obtain housing. It is beyond any doubt that the applicant and her children cannot live with their relatives, because other members of their family are in Chechnya, so the missing information could not have had any influence on the case whatsoever.
The Supreme Administrative Court found that it is the authority which is obliged to establish all the facts and find the objective truth. Although the local act imposes an obligation on the applicant to present concrete evidence, it cannot be stated, that justifiable problems with completing the evidence by the applicant exempted the authority from its own obligation to examine the case and enabled to automatically dismiss the application. Such an understanding would be inconsistent with article 6 of the 1951 Convention relating to the status of refugees.
The judgment examined whether returns of asylum seekers to Bulgaria would be contrary to their Article 3 rights. The court held that the Bulgarian system has significantly improved since the UNHCR report in 2014 which prohibited returns of asylum seekers. As a result the returns would not be in breach of Article 3.
The administrative court may not replace the State Secretary’s credibility assessment of the asylum claim with his own assessment. The administrative court can, however, express its opinion on the underlying facts submitted by the Secretary of State.
The three cumulative prerequisites for an internal protection alternative are not fulfilled, as it cannot be reasonably expected of the refugee to settle in the proposed part of the country. The UNHCR’s reasonability test is comparable with the national legislation’s one and UNHCR defines the internal protection alternative as ‘unreasonable’.
The mere fact that the applicant does not have an identity document does not mean that there was a reason for limiting his freedom of movement based on the first alinea of Article 51(1) of IPA (establishment of identity). The mere presumption that the applicant has deliberately thrown the passport away in order to conceal his identity and country of origin does not mean that doubts exists concerning the applicant’s identity. Doubts of the identity of applicants for international protection may exist for example if the applicants change their personal information during the procedure.
Detention of migrants for criminal offences subject to return is lawful even if asylum-seeker status is subsequently acquired. The application of 2008/115/EC is then not mandatory and the detention’s duration is not addressed under Article 5 (1)(f) therefore is to be judged ad hoc.
The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:
The Italian consolidated Law on Migration (Art. 5(6) n. 286/1998) requires humanitarian protection to be given where a person is in a situation of vulnerability. Such a situation occurs when the applicant’s constitutional and international fundamental rights, such as health and nutrition, are compromised.
The Supreme Court has requested two preliminary rulings to the Court of Justice of the European Union. The time of onset and the determination of the duration of the suspect’s ‘undesirable declaration’, which is considered equal to an entry ban, are under discussion since this statement had already been issued before the Return Directive was operational.
The Administrative Court Minden has temporarily prohibited the Dublin transfer of a Nigerian refugee to Italy due to systematic deficiencies within the local reception conditions.