Case summaries
In the case of individuals who are eligible for subsidiary protection according to the Qualification Directive, the limitation of residence represents an unauthorised limitation on the free movement of persons according to Article 32 of the Qualification Directive if it is based solely on social welfare grounds.
The Afghan applicant was granted subsidiary protection status during the court proceedings. The authority must make sure that the applicant is not at risk of serious harm or persecution in the relevant part of the country, not only at the time the application is assessed but also that this is not likely to occur in the future either. Countries struggling with armed conflicts do not normally provide safe internal flight options within the country, as the movement of front lines can put areas at risk that were previously considered safe.
This case concerned the concept of ‘safe country’ within the Dublin system and respect for fundamental rights of asylum seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible Member State then subject to the sovereignty clause the State can check if another Member State is responsible by examining further criteria under the Regulation. This should not take an unreasonable amount of time and if necessary then the Member State concerned must examine the asylum application.
When establishing the necessary “density of danger” in an internal armed conflict within the meaning of Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive, it is not sufficient to quantitatively determine the number of victims in the conflict. It is necessary to carry out an “evaluating overview” of the situation, which takes into account the situation of the health system. However, this issue was not decisive in the present case, as the applicant would only face a low risk of being seriously harmed.
Subsidiary protection can only be granted if all the criteria for qualifying as a refugee are not fulfilled.
Subsidiary protection can only be granted when the 1951 Refugee Convention is not applicable.
These joined cases concerned two Applicants who were denied protection in Germany on the basis of the exclusion provisions in the Qualification Directive. Upon appeal the German Courts found that even if they were excluded under the Qualification Directive they may still entitled to the right of asylum recognised under Article 16A of the Grundgesetz. The CJEU, in examining Article 12, the exclusion provision in the Qualification Directive, found that the fact a person was a member of an organisation which is on the EU Common Position List 2001/931/CFSP due to its involvement in terrorist acts, does not automatically constitute a serious reason to exclude that person. Exclusion is not conditional on the person concerned representing a present danger to the host Member State or on an assessment of proportionality.
The applicant is not entitled to protection from deportation within the meaning of Section 60 (7) (2) of the Residence Act / Art 15 (c) of the Qualification Directive as the levels of indiscriminate violence in his home area are not characterised by a sufficient "density of danger".
The case concerned a subsequent application for international protection based on the right to a family and private life (Art 8 of the European Convention on Human Rights (ECHR)) The application was rejected as inadmissible by the Ministry of Interior (MOI) on the basis that Art 8 considerations were deemed not applicable in asylum cases. However, the Supreme Administrative Court (SAC) made two important findings. Firstly it held that even if an application was considered to be inadmissible, there was an obligation to evaluate the risk of refoulement under Art 33 of 1951 Refugee Convention. Secondly, as provided by § 14(a)(2)(d) of the Asylum Act, in exceptional cases, to grant international protection for family life reasons, these have to be accepted as new elements in subsequent proceedings.
The case involves consideration by the Supreme Court of Ireland of whether or not the Minister for Justice has a discretion to consider an application for subsidiary protection from a person who has a deportation order made prior to the 20.10.2006, the date on which the law transposing the Qualification Directive came in to effect in Ireland. The Court overturned a decision of the High Court and stated that the Minister for Justice does not have discretion to consider an application for subsidiary protection from a person with a deportation order prior to the 20.10.2006.