Case summaries
The case dealt primarily with the standard of reasoning required in credibility assessment among other issues (travel findings and best interests of the child). In quashing the RAT decision, the High Court ruled that the RAT had not met the standard of reasoning required in assessment of the credibility of oral testimony (as established in the jurisprudence of the Court and EU law), reiterating the obligation upon the decision maker to ensure that each negative credibility finding is accompanied by an adequate rationale clearly outlining the reasons for such findings.
When addressing asylum claims, refugee status must be recognised when there is a well-founded fear of persecution for any of the reasons foreseen in the 1951 Refugee Convention. Assessment of an asylum request fundamentally needs careful consideration of the facts and personal circumstances of the asylum seeker, as well as an analysis of the nature of the risk. The criteria of this test does not have to be restrictive, it is sufficient that the competent authority has a rational belief that the requirements are met for the purpose of receiving refugee status.
The case shows how the legal amendment which entered into force on 13 November 2015 changed the situation of asylum seekers by deleting the legal basis for detention formulated as “preventing from abusing the asylum proceedings”. Instead, article 87 (1) (3) of the Law on granting protection to foreigners in the territory of the Republic of Poland reflects article 8 (3)(d) of the recast Reception Directive and states that an applicant can be detained in order to issue or enforce the return decision if towards the applicant there is an ongoing return proceedings or there was a return decision issued and the applicant already had the opportunity to access the asylum procedure, and there are reasonable grounds to believe that the application was merely made in order to delay or frustrate the enforcement of the return decision.
The Border Guard relied on this provision when prolonging the detention of the applicant in the present case arguing it with the need to secure the proceedings regarding international protection. In the opinion of the Court, this provision cannot be used in the situation where the applicant is not subject to return proceedings and no such decision has been issued so far. That is why he should be released.
It is a material prerequisite for the permissibility of a Dublin transfer of a family with children to Italy under international law to seek an individual guarantee that they will be provided with an accommodation that is appropriate for children and respects the unity of the family. This prerequisite of an individual assurance also requires it to be up to date.
A transfer decision that relies on a six months old general assurance of the Italian authorities that appropriate accommodation will be provided for, indicating the number of available places in the regions of Sicily and Calabria does not meet this requirement. Furthermore, a guarantee that does not give the names and ages of the individuals concerned is not concrete enough.
In appealing against the Migration Agency’s and the Migration Court’s rejections of the Applicant’s application for leave to remain in Sweden, the Applicant claimed grounds for protection which he/she had not previously raised before the Migration Agency. Claiming grounds for protection meant that special requirements for asylum applications applied and the Applicant was entitled to a personal interview before the Migration Agency. The Migration Court of Appeal referred the Applicant’s case back to the Migration Agency as the Migration Court could not be the body to try the asylum application in the first instance.
The failure of Fedasil to accommodate an asylum seeking child led to a risk of violating his Article 3 rights. There was a prima facie case that he had lodged an application for asylum and was, thus, entitled to material reception conditions.
This case is concerned with whether the decision to deny the asylum application and the subsequently imposed entry ban were justified based on articles 1F(a)-(c). Under these provisions the Secretary of State can raise national security as a ‘serious ground’ for his decision if an element of ‘personal participation’ can be proven.
The Court found that the applicant would face a real risk of ill-treatment contrary to Article 3 ECHR if extradited to Kyrgyzstan, having regard to the various reports from UN bodies and international NGOs assessing the situation in the country.
Taking into account all the circumstances of the case, the Court found that the detention conditions of the applicant did not amount to a breach of Article 3 ECHR. However, Malta’s domestic law remained in violation of Article 5 § 4 ECHR as it did not provide an effective remedy to challenge the lawfulness of the detention. The applicant’s detention after being granted subsidiary protection for a further 5 days was a violation of Article 5 § 1 ECHR.
This case is concerned with whether the Secretary of State for Justice has discharged or breached his duty of care with regards to the risk of refoulement in an asylum application.