Case summaries

The Court finds that third-country nationals without a valid residence title in a Member State are illegally present in that Member State and thus fall under the scope of the Return Directive, irrespective of the situation or the measures that led to the illegal presence of the person concerned. Against this backdrop, the Court holds that a deportation order cannot uphold an entry and residence ban without there being any return decision for the applicant which is thus incompatible with the Return Directive.

National legislation that grants the possibility of rejecting an application made by a third-country national or a stateless person for international protection, whose previous application seeking refugee status in another Member State implementing the Dublin III Regulation had been rejected, is precluded under Article 33(2)(d) of Directive 2013/32 read in conjunction with Article 2(q) thereof. 

Article 27(1) of Dublin III Regulation read in the light of recital 19 thereof, and Article 47 of the Charter preclude national legislation that bars domestic courts from assessing an application for annulment of a Dublin transfer decision by considering circumstances that emerged after the transfer decision was adopted and which are decisive for the correct application of the regulation. However, such circumstances may not be considered if that legislation foresees a specific remedy with ex nunc review that can be exercised after the emergence of the new circumstances is not conditional on the person’s deprivation of liberty or on the imminent implementation of that decision.

Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.

The absence of food provision raised an issue of Article 3 in respect of the first applicant, given his state of total dependency on the Hungarian government during his stay at the Röszke transit zone. The physical conditions of the container in which the family stayed in, the unsuitable facilities for children, irregularities in the provision of medical services, and the prolonged stay in the area amounted to a violation of Article 3 in respect of the applicant mother and the children.

The family’s stay at the Röszke transit zone amounted to deprivation of liberty due to, inter alia, the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of the applicants’ stay and the conditions in the transit zone. Their deprivation of liberty was unlawful under Article 5 (1), as there was no strictly defined statutory basis for the applicants’ detention and no formal decision complete with reasons for detention had been issued by the Hungarian authorities.

Article 5 (4) was also violated because he applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court.

The Return Directive does not prevent a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.

In the context of cessation of refugee status under Article 11 (1)(e), the change in circumstances must remedy the reasons which led to the recognition of refugee status; a country of origin’s ability or inability to demonstrate that it can provide protection from acts of persecution constitutes ‘a crucial element’ in this assessment.

Mere social and financial support to the third country national is inherently incapable of either preventing acts of persecution or of detecting, prosecuting and punishing such acts and, therefore, cannot be regarded as providing the protection required by Article 11(1)(e). In order to determine whether the third-country national still has a well-founded fear of persecution, the existence of protection against acts of persecution should be considered when examining the change in circumstances.

When analysing if protection from UNRWA has ceased (Article 12(1)(a) Directive 2011/95), account must be taken of the possibility for the individual to concretely access effective protection in any of the other fields within UNRWA area of operations.

Assistance from the Agency must be considered as maintained when an individual has left UNRWA area of operations from a field where he couldn’t obtain effective protection, if the person had previously voluntarily left a field where he could access UNRWA’s assistance, even though he could reasonably foresee, according to the information available for him at the moment of departure, that he wouldn’t be able to receive effective protection from the Agency in the field he was travelling to, or return to the field of origin in the short term.

The reception conditions for beneficiaries of international protection in Bulgaria are such that they may face severe material deprivation due to “indifference” on the part of the authorities (cfr. CJEU, Ibrahim), potentially amounting to a violation of Article 3 ECHR / Article 4 CFREU.

When the State Secretary decides that a request for international protection is not admissible, because the applicants have refugee status in Bulgaria, it is not sufficient for him to refer to the principle of mutual trust between EU Member States and to the Council of State’s jurisprudence, but he is obliged to examine the applicant’ s individual circumstances and to obtain specific information and guarantees from the Bulgarian authorities.

The Supreme Court of Ireland handed down a judgment concerning the question whether the Minister for Justice and Equality is obliged to revoke a deportation order or otherwise facilitate a person to enter the State, when that person has been granted consent to make a subsequent application for international protection under section 22 of the International Protection Act 2015, which requires the person's presence in the State to make the application. It was held that there is no express right to enter the State for the purposes of making an application, save where the person is at its frontiers.