Case summaries

The safe third country ground under Article 33(2)(c) of Directive 2013/32 is optional; an application may be declared inadmissible on that basis even if the applicant qualifies for international protection, but it cannot be rejected as unfounded on that ground.

Article 38 requires national law to define criteria establishing a sufficient connection between the applicant and the third country to make transfer reasonable.

Article 38(2)(b) and (c) of Directive 2013/32 permits reliance on publicly available sources and executive lists of safe third countries, provided that national law sets out a methodology for an individualised assessment of safety and allows the applicant to challenge the existence of the required connection.

Courts hearing appeals must verify the existence of such a connection, even if national law does not expressly grant that power.

A three-day time limit, including public holidays and non-working days, for lodging an appeal against a decision rejecting an application for international protection as manifestly unfounded under an accelerated procedure is incompatible with Article 46(4) of the Asylum Procedures Directive where it restricts the effective exercise of the rights guaranteed in Article 12(1)(b) and (2), and Articles 22 and 23 of that Directive.

Article 4(1) of Directive 2004/83 requires the determining authority, under its duty of cooperation, to obtain up-to-date country of origin information and, where relevant, a medico-legal report on the applicant’s mental health; a breach of that duty does not automatically lead to annulment unless it may have affected the outcome.

Under Directive 2005/85, delays in the asylum procedure cannot be justified by legislative changes and, on their own, do not warrant setting aside a decision absent an impact on the outcome.

Article 4(5)(e) of Directive 2004/83 means that a false statement later explained and withdrawn at the first opportunity does not, by itself, undermine the applicant’s general credibility.

Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.

In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of  serious harm.

In this case the Upper Tribunal provided that the Refugee Convention doesn’t offer protection from social conservatism and that there is no protected right to enjoy a socially liberal lifestyle. However, the Convention may be considered to apply where  ‘westernisation’ reflects a protected characteristic such as political opinion or religious belief, or if there is a real risk that the individual in question would be unable to mask his westernisation and persecutors would impute such protected characteristics to him. 

With regard to the granting of subsidiary protection, the existence of real risks to the rights under Art. 2, 3 ECHR must be examined, which includes the obligation to consider ongoing developments on the basis of available information. If a deterioration of the security situation is disregarded, this could be seen as arbitrariness.

To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR.  If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.

States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court. 

The Court decides that the maximum period of detention for the purpose of removal of a person on the grounds of public policy or public security under Belgian law, according to which Union citizens and their family members are treated in the same way as third-country nationals subject to a return procedure, exceeds the principle of proportionality and thus does not comply with EU law.

Article 40(2) of the Asylum Procedures Directive does not distinguish between initial and subsequent applications for international protection. As such, Member States should not treat the assessment of evidence submitted in subsequent applications different from evidence submitted in a first application. Any document submitted by the applicant in support of his application for international protection must be considered, and the inability to authenticate that document cannot justify the exclusion of such a document from the examination.

The assessment of the existence of indiscriminate violence under Article 15 (c) of the Qualification Directive may not be based exclusively on a quantitative assessment of casualties and population ratios. A comprehensive appraisal of all the circumstances of the individual case, and in particular those which characterise the situation of the applicant’s country of origin, is required.