Case summaries
When no travel documents have been submitted the applicant can be held accountable for his failure to do so according to Art 311 (f) of the Aliens Act as the conditions of Art 4.5 of the Qualification Directive have not been established.
This was an appeal against the decision to transfer an asylum applicant to Poland. The Council of State rejected the applicant’s claim that he was not informed about the Dublin procedure in a language intelligible to him, as the applicant had indicated he understood Russian and an interpreter had been provided. Moreover, the circumstances necessary to apply Art 3(2) Dublin Regulation had not been met.
A group shall be considered as a particular social group where, in particular, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society, and membership of that group is established where the attitude of an applicant is considered by the whole or a part of the society of his/her country of origin as an infringement of the customs and laws in force, and for this reason he/she is likely to face persecution against which the authorities refuse or are unable to protect him/her.
In order for an expulsion order to be immediately enforced it must be clear that the applicant is not at risk of persecution or similar treatment in the country of origin.
This judgment overturned the decision of the Polish Refugee Board on revocation of refugee status. Adoption of state protection within the meaning of the law means that a foreigner benefits from the protection of the state of his nationality, that he is able to avail himself of this protection and that there exists no well-founded fear of persecution. Adoption of state protection means that the foreigner enjoys the genuine protection of his country of origin.
In proceedings on revocation of refugee status, the authority determines whether there are other reasons to justify the foreigner’s fear of persecution.
This case concerned the disproportionate delay in processing the applicant’s claim for asylum on appeal. The applicant was informed that it would take eighteen months for his case to be heard. He lodged an appeal before the Constitutional Court (as a last resort) claiming the right to due process constitutionally guaranteed under Art 24.2 of the Spanish Constitution to enjoy legal process without undue delay.
Given the situation of particular vulnerability and constraint of the applicant, a former child soldier from the DRC, there is no reason to apply any of the exclusion clauses of Article 1F of the 1951 Refugee Convention to him.
Based on new evidence (suspicion of trafficking) the Administrative Court returned the applicant’s case to the Immigration Service which had previously decided that Italy was responsible for the application according to the Dublin II Regulation.
The applicant’s claim for refugee status was rejected as Convention grounds were not established, however, subsidiary protection was granted in the alternative by the court on the basis of grave human rights violations and the prohibition of torture (Art 3 of the European Convention on Human Rights (ECHR)).
The court accepted the argument that by granting a lower protection status (tolerated status), even if the applicant qualifies for subsidiary protection, the asylum authority violates Art 15 (b) and (c) of the Qualification Directive (Art 61 (b) and (c) of the Asylum Act)
The region of El Fasher, in Darfur (Sudan), is plagued by a generalised armed conflict.