Case summaries

Court ruled upon the correct test to use when considering returns to Palestine.

The fact that a person cannot be repatriated under Article 3 of the ECHR does not imply that that person should be granted a leave to reside in the host country by way of subsidiary protection under Directive 2004/83. The person concerned is eligible for subsidiary protection only if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate health care.

Following the careful examination of International, European and domestic law, the Court concluded that the grant of refugee status supersedes any order made by a Family Court (regarding the return of the child to Pakistan), because it is the Secretary of State for the Home Department  that is the entrusted public authority to deal with asylum matters.  However, were the Family Court to discover new facts, the relevant public authority would be responsible, in principle, under the tenets of UK Administrative Law to review their decision. 

It is not reasonably likely that a draft-evader would face criminal/administrative proceedings in Ukraine but there is a real risk that a person sentenced to imprisonment in Ukraine would be detained on arrival there and that detention conditions would breach Article 3 ECHR.

The right to be heard does not require, as a rule, that, where national legislation provides for two separate procedures for examining applications for refugee status and applications for subsidiary protection, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place. However, an interview must be arranged where specific circumstances render it necessary in order to examine an application with full knowledge of the facts.

A renewed application for asylum in a second country is admissible if the nature of international protection applied for differs from the protection already granted. Deportation to the country of the first application or the country of origin is not to be taken into account in this situation.

The applicant challenged the Belgian Minister of Asylum and Migration’s decision not to grant him a humanitarian visa via an emergency application before the CALL. He relied on the following grounds: inter alia, (i) his medical condition and (ii) the poor living conditions of the West Bank in Palestine.

The CALL decided (i) these two elements justified an urgent decision, (ii) there was a risk of serious prejudice which would be difficult to remedy if the Minister’s decision was enforced, and (iii) there were serious grounds for invalidating the Minister’s decision since denying a visa to the applicant was likely to constitute a breach of art. 3 of the European Convention on Human Rights (ECHR) (prohibition of inhuman or degrading treatment), thus fulfilling the three conditions under art. 39/82 of the Belgian Aliens Law 15-12-1980. 

The degree of indiscriminate violence in certain parts of Iraq was such as to expose persons to a real risk of serious harm within the meaning of Article 15(c) of the Qualification Directive merely due to their presence there.

However, other areas of the country (including Baghdad City) did not meet this threshold, and as such, Iraqi nationals could be forcibly returned to these areas as it would not generally be unreasonable or unduly harsh for them to internally relocate there. 

The Appellant appealed to the Upper Tribunal on the ground that he qualified for subsidiary protection under Article 2(e) and (f) of the Qualification Directive and was therefore entitled to a residence permit under Article 24(2) of the Qualification Directive.

In dismissing the appeal, the Tribunal found that: (a) Article 24 of the Qualification Directive does not confer a substantive right of residence in the member state concerned but rather its function is to determine the modalities whereby a right of residence otherwise existing is to be documented, and (b) the Procedures Directive is a truly adjectival instrument of EU legislation which does not create any substantive rights in the realm of asylum or subsidiary protection.

According to the jurisprudence of the Supreme Administrative Court an oral hearing can only be waived if the complaint does not claim any facts relevant to the assessment which are in contradiction or go beyond the result of the administrative investigation procedures.

On the contrary, it constitutes a substantiated denial of the consideration of evidence by the relevant authority if a complaint questions the credibility of different sources which formed the basis of such consideration. The lack of an oral proceeding in such cases leads to a violation of the obligation to hold a trial.

With regards to a possible exclusion from asylum its severe consequences for the individual do not only require that the exclusion clauses of the 1951 Refugee Convention are interpreted narrowly but also that the facts are sufficiently established in order to determine which conduct the exclusion is based on and to weigh the reprehensibility of the offense against the need of protection of the applicant.

Considerations of the competent authority, which are limited to the assumption that the individual in question has participated in hostilities and has caused the death of opposing soldiers and civilians without further clarifying when,  on which occasion and under which circumstances such participation has taken place, do not meet the requirements for determining whether the criteria for exclusion are fulfilled.