Case summaries

This case concerned the refusal of a Refugee appeal on the basis that Sate protection was available and/or that the applicant could relocate within Nigeria and avoid persecution.  In support of the finding that State was available; the Tribunal Member relied upon part of a UK Home Office Operational Guidance Note (OGN) on Nigeria that had not been provided to the applicant. The Court found that the applicant not afforded fair procedures. She had no opportunity to comment upon the information in the OGN. The Court also found that the issue of whether or not State protection is available does not depend upon the existence of a police complaints procedure but upon a determination that there exists in the country of origin as a matter of current practice, an effective system for the detection, investigation, prosecution and conviction of crimes of the kind which form the subject matter of the complaint.

Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000) (which provides protection in the Netherlands against a potential breach of Article 3 of the European Convention on Human Rights) provides for the same protection as Article 15(c) of the Qualification Directive. The latter article therefore does not amend the law.

Article 29(1), introductory paragraph and (b) of the Foreigners Act (2000) (which provides protection in the Netherlands against a potential breach of Article 3 of the European Convention on Human Rights) provides for the same protection as Article 15(c) of the Qualification Directive. The latter article therefore does not amend the law.

This case concerned the interpretation of Article 4(4) of the Qualification Directive and the transposing Irish measure, which had added certain wording. The Court noted that the Directive left it open to Member States to introduce more favourable standards so long as they are compatible with the Directive. The Court held that the additional wording merely allowed a decision-maker in a case of compelling reasons, to determine eligibility for subsidiary protection as established without being obliged to be fully satisfied that previous serious harm inflicted upon an applicant runs a risk of being repeated.

If re-examination of a case under the Aliens Act Chapter 12 Section 19 (provides for re-examination of a claim on the presentation of information supporting a need for international protection) has been granted, the Migration Board cannot deny a residence permit without an oral healing having been held.

A time limit of seven days to submit an appeal against the decision on a manifestly unfounded asylum claim is too short to ensure an effective remedy.

When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.

“Good reasons,” as defined in Art 4.4 of the Qualification Directive exist if a recurrence of past persecution is not expected and there is no enhanced risk of first-time persecution of a similar kind. At present, there are “good reasons” to consider persecution of Chechens who return to Chechnya, unless they belong to a particular risk group, will not be repeated.

In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatants.

1. At present, a definition of what constitutes war crimes or crimes against humanity has to be primarily based on the elements of these crimes as determined in the International Criminal Court (ICC) Statute.
2. In an internal armed conflict, war crimes may be committed not only against the civilian population, but also against combatants.
3. As a rule, acts by combatants which form part of combat operations in an internal armed conflict, and which do not constitute crimes against peace, war crimes or crimes against humanity (under Section 3 II (1) (1) of the German Asylum Procedure Act), will also not constitute the exclusion ground of a serious non-political crime.

This was an appeal against the decision by the Federal Asylum Office to transfer the first applicant to Poland and the second applicant, including their two children, to the Czech Republic. The Asylum Court allowed the appeal and found the consultations with other Member States and the decisions of the Federal Asylum Office to be arbitrary, ignoring national legislation requiring one procedure for the whole family and violating the Dublin II Regulation’s emphasis on the necessity of maintaining family unity as well as Article 8 of the ECHR.