Case summaries

An Uzbeck national who had fled to Turkey was deported to Iran which constituted a violation of Article 3 of the European Convention on Human Rights. He then returned to Turkey and lives in hiding for fear of deportation. 

The detention of a Somalian national is declared by the European Court of Human Rights to constitute a violation of Articles 3, 5 (4) and 5 (1). The cumulative effects of the detention conditions amounted to inhuman and degrading treatment and the detention could not be deemed lawful due to the lack of an effective remedy during detention and insufficient justification under Article 5 (1) (f). 

The court overturned a decision to transfer the Applicant to his first country of asylum, Bulgaria, and also overturned the placement of the Applicant in administrative detention for five days.

The court held that given the general state of reception conditions for asylum applicants in Bulgaria and the Applicant’s particular circumstances, in particular his physical vulnerability, there were substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for asylum applicants and that if the Applicant was handed over to Bulgarian authorities, his asylum application would not be properly examined or he would be at risk of suffering inhuman or degrading treatment contrary to Article 4 of the Charter of Fundamental Rights of the European Union, article 3 of the European Convention on Human Rights, and paragraph 2 of article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”).

The decision of the Administrative Court Düsseldorf of January 8, 2016 - 23 L 3974 / 15.A, which ordered the removal of the complainant to Bulgaria, breaches his fundamental right under Article 3, paragraph 1 of Basic Law in its manifestation as a general prohibition on arbitrariness. The Administrative Court should have more closely scrutinised the newly available information on the situation pertaining to asylum seekers and persons with international protection status in Bulgaria.  The decision of the Administrative Court Düsseldorf is repealed and the case is referred back to the Administrative Court Düsseldorf.

The procedural dimension of Article 8 ECHR as well as the investigative and evidence gathering obligations on Member States within the Dublin III Regulation require the Secretary of State to proactively and expeditiously undertake steps to verify familial links. Passiveness in this regard will lead to an unlawful decision making procedure.  

The Federal Administrative Court rules, that the significant risk of absconding for ‘Dublin-detention’ orders must always be assessed on a case-by-case basis. The sole existence of a ground for detention as set out in Art. 76a(2) AuG does not automatically indicate a significant risk absconding. Such an order is unlawful and must be rescinded. The Court ‘warns’ the SEM that the current practices are very concerning and require adaptation.

The Federal Administrative Court (the “Court”) suspended its decision and referred the case to the European Court of Justice (“CJEU”) pursuant to Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) to obtain a preliminary ruling with regards to the following question:

Do the provisions of Regulation No. 604/2013 (“Dublin-III-Regulation”) 

i)  the obligation of a Member State to (re-)file a request to take back the applicant with another Member State; and

ii) the possible transfer of the responsibility for examining an application,

apply in relation to an applicant who has been deported to the Member State where he had first entered the EU and illegally re-enters the Member State that had filed the request to take back and deported the applicant.

The 6-month period under Art. 29 (1) Dublin-III -Regulation begins after the request by another Member State to take charge or to take back the person concerned has been accepted or the fiction of such acceptance (Art. 29(1) first alternative) or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) (Art. 29(1) second alternative). In the second case, the later event determines when the time limit begins to run, unless the time limit for the transfer triggered by the acceptance of the request to take back or to take charge has already expired. In such a case, the latter event is decisive to determine when the period begins, unless the 6-month period triggered by the (deemed) acceptance had already expired. 

If a Member State is responsible for carrying out an asylum procedure under the relevant terms of the Dublin Regulation, e.g. under Art. 29 (2) of the Dublin III Regulation, an applicant may invoke that Member State’s responsibility if it has not been positively established that another Member State (which does not have responsibility) is willing to take charge of the applicant or take him or her back.

In such a case, it can be derived from the objective and purpose of the Dublin system, as well as the fact that it constitutes the procedural dimension of the substantive rights granted to applicants by Directive 2011/95/EU (i.e. Qualification Directive), that the individual concerned is entitled to have his asylum application reviewed by the responsible Member State. This is so, irrespective of the question, whether the provisions on the Member State’s responsibility generally provide for subjective rights of the applicants. 

The case considered an appeal by the London Borough of Croydon (“Croydon”) to have Y’s claim for damages for wrongful detention stayed pending the resolution of Y’s challenge to the assessment of his age undertaken by Croydon.

The Appellant submitted that the judge erred in holding that the principles in Starr v National Coal Board [1977] 1 WLR 63 (“Starr”) did not apply to this case. The Respondent argued that the Starr principles could not apply to this case. The Court upheld Croydon’s appeal, holding that the order sought by Croydon was reasonably necessary to enable it to defend the challenge to its age assessment and that Y had unreasonably refused to give his consent to the different age assessments applied for by Croydon. 

This case relates to a take back request on grounds of Article 18(1)(d) Dublin III Regulation. Referring to the A-G opinion in Ghezelbash (Case C-63/15), the Court found that Abdullahi (C-349/12) is not applicable to the Dublin III Regulation. Hence,  an applicant could call into question the application of the criteria for determining the responsible Member State in circumstances where a Member State has agreed to take back an applicant for international protection.