Case summaries

The detention of asylum applicants may undermine their ability to claim asylum and that an ‘effective remedy’ requires an appeal with suspensive effect against refoulement in order to prevent irreparable harm, sufficient time to prepare the appeal and effective legal assistance and interpretation.

If a subsequent application for international protection is submitted, the administrative authority must evaluate whether the applicant has presented any new facts that, through no fault of the applicant, had not been the subject of examination in the previous proceeding. Otherwise, the application is inadmissible and the proceedings must be stopped.

During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.

There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.

The right to an effective remedy under EU law does not require the specific preliminary decision to place an applicant for international protection under the accelerated procedure to be itself subject to judicial review, provided that this decision is reviewable as part of judicial consideration of the final substantive decision to grant or refuse protection.

The administrative authorities, when carrying out an assessment of whether a subsequent application for refugee status is inadmissible (based on the same grounds), should compare the factual basis for the administrative case on which a final decision has been made with the testimony of the foreignor provided in the subsequent application and should also examine whether the situation in the country of origin of the applicant and also the legal position have changed.

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

This case involved a challenge to the transposition of the Procedures Directive into Irish domestic law which appeared to be barred by a special time limitation period of 14 days applicable to challenges to asylum/deportation decisions. The Court found that a Member State is entitled to apply a national limitation period even in respect of those cases where the Member State in question has failed properly to transpose the relevant Directive, provided that the limitation period complies with the principles of equivalence and effectiveness. The Court found that the strict 14 day time limit provided for in section 5 of the Illegal Immigrants Trafficking Act, 2000, is not equivalent to the limitation period for judicial reviews in other broadly similar areas (generally 6 months) and is not effective because it is so short a time. In the circumstances, the limitation period could not be pleaded or relied upon against the applicants. 

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 transposition of the Asylum Procedures Directive (APD) in French legislation is incomplete on certain aspects (provision of information to applicants for asylum; access to the report of the personal interview under the border procedure) and complete on other aspects. 

The withdrawal of practical protection against deportation for subsequent applications is lawful and does not represent an infringement of the right to an effective remedy (Art 13 ECHR), if the legality of the withdrawal is examined by the Asylum Court.