Case summaries

The Federal Administrative Court has to clarify whether the petition for action directed solely at the obligation to decide on the asylum application is admissible. The question if it is also possible to directly oblige the defendant to grant international protection or to establish prohibitions on deportation by means of an action is not the subject of the decision. As a result, the court comes to the conclusion that there was a delay by the respondent of providing the decision on the asylum application without sufficient reason and that the plaintiff has a need for legal protection for its action for failure to act.

This case concerns a child asylum applicant who had his appeal against refusal of asylum considered after he had turned 18, and thus had become an adult. He complained that this breached Article 39 of the Procedures Directive (effective remedy).

The case refers to an administrative appeal before the Supreme Court brought by the Appellant against the High National Court’s judgment denying the right to asylum and subsidiary protection.

The Appellant is a Cameroonian national.In the application he claims to be a minor and that the grounds for persecution was his sexual orientation.

The Supreme Court upheld the appeal and reversed the challenged judgment.Furthermore the Court ordered a reconsideration of the administrative procedure from the beginning, in order to provide the asylum seeker with legal assistance.

In this case the applicants argued unsuccessfully that the decision of the UK designated authority for determining asylum claims (the Secretary of State for the Home Department) regarding an applicant’s age should be accepted by other government bodies.

The age of the child and the mental state of the Applicant as well as the ban on more detailed questioning on the reasons for fleeing in the initial police interview should have been taken into account to a greater extent when assessing the assertion of flight. The lack of discussion of these aspects represents a failure to investigate several decisive points, which made the decision by the Asylum Court arbitrary and therefore unconstitutional

When reaching a decision, the Defendant should have protected the best interest of the child. Taking into account the fact that the Applicant is a minor and providing legal representation for a minor applicant, are necessary elements in the process of demonstrating and establishing the facts. The principle of protecting the best interest of the child has to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of  evidence (in relation to subsidiary protection).

The Defendant should already have started searching for parents during the procedure for international protection and not only once the procedure for removing the child from the state has begun.   

Threats and violence against a person’s family members can be considered as acts of persecution where that person is connected to the facts which previously led to the violence..

The Plaintiff needs to state all circumstances known to him in relation to his persecution; however he does not need to establish a material and legal connection between the persecution and the reasons for persecution.

The fact that somebody is a child in Afghanistan can mean that he belongs to particular social group.

Insofaras the Federal Asylum Agency did not apply an age-appropriate standard when assessing the credibility of the minor Applicant and did not comply with the particular obligation to provide instruction and the duty of care applicable in the case of a minor, the authority committed a gross procedural error.

Art 17.4 of the Asylum Procedures Directive guarantees certain rights for minor applicants. This case confirmed that these rights should be known to those involved, so that the rights can be invoked before the court. Further it was confirmed that Art 3:2 of the General Administrative Law Act does not meet this requirement.

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

This case concerned the treatment of evidence from unaccompanied minors. The applicant was an unaccompanied minor from Afghanistan. He claimed asylum on the basis of a fear of persecution both by the Taliban and the Afghan government. The Refugee Appeals Tribunal refused his refugee appeal on the grounds that the applicant was not credible and that his claim was not objectively well-founded. The Court found that the Tribunal Member had engaged in impermissible speculation and conjecture in relation to the applicant’s prospect of State protection in Afghanistan, that the Tribunal Member had imputed expectations to the applicant without any consideration of the applicant’s level of maturity at the time, and that the Tribunal Member had failed to consider whether the applicant’s fears in relation to the Taliban were realistic having regard to his age, maturity and the particular circumstances in Northern Afghanistan.