Case summaries
Since there is a high risk of exposure to inhuman and degrading treatment under Article 3 ECHR and Article 4 CFREU, Portugal should not allow the applicant’s transfer to Italy. The Court also found that there had been a violation of his right to a prior hearing, and that there is no obligation under EU Law of asylum seekers’ transfer once the DRIII is applied.
1. A change of the destination country in a return decision by an administrative authority should be regarded as a new return decision requiring an effective remedy in compliance with Article 47 CFREU.
2. The national legislation providing for a safe transit country ground applicable in the present case is contrary to EU law.
3. The obligation imposed on a third-country national to remain permanently in a closed and limited transit zone, within which their movement is limited and monitored, and which the latter cannot legally leave voluntarily, in any direction whatsoever, constitutes a deprivation of liberty, characterised as "detention" within the meaning of the Reception Conditions (RCD) and Returns Directives (RD).
4. Neither the RCD nor Article 43 of the Asylum Procedures Directive authorise detention in transit zones for a period exceeding four weeks.
5. Detention under the RCD and the RD must comply with the relevant guarantees under EU law including being based on a reasoned detention decision; consisting of a measure of last resort, following an individualised assessment of the case, its necessity and proportionality; and effective judicial review should be available. An applicant for international protection cannot be held in detention solely on the ground that they cannot support themselves. Where detention is found to contravene EU law, domestic courts may release the applicant and order the authorities to provide accommodation in line with the RCD provisions. They are empowered to do so, even if they have no clear jurisdiction under national law.
Not all cases with an international element can establish jurisdiction under the Convention; an assessment of exceptional circumstances on the basis of the specific facts of each case is required.
The applicants do not have any connecting links with Belgium and their sole presence in the premises of the Belgian Embassy in Lebanon cannot establish jurisdiction, as they were never under the de facto control of Belgian diplomatic or consular agents. Jurisdiction under Article 1 ECHR cannot be established solely on the basis of an administrative procedure initiated by private individuals outside the territory of the chosen state, without them having any connection with that State, nor any treaty obligation compelling them to choose that state.
In the case of an Afghan Shia Hazara applicant, the Belgian Council for Alien Litigation considered that the request for international protection was based on several sources of fear, which must be analysed in combination with each other, forming a cluster of concordant evidence.
The Council granted the applicant refugee status.
The application of provisions on preclusion must always be decided without discretionary error. If the lower court does not make any discretionary considerations at all for its decision to apply a provision on preclusion when rejecting evidence due to a missed time-limit, it infringes the petitioner’s right to be heard under Article 78(2) of the Saxon Constitution (SächsVerf).
The Council of State applies the reasoning of ECtHR and CJEU jurisprudence to the reception conditions in Hungary to conclude that there may be a risk of ill-treatment upon return (Article 3 ECHR / Article 4 CFREU infringement) when a particularly vulnerable person who is fully dependent on state support will be confronted with "official indifference in a situation of serious deprivation or want incompatible with human dignity” upon return to Hungary.
An asylum seeker is entitled to request the temporary termination of his or her stay in an accommodation centre and to seek alternative accommodation if compliance with the distancing rules of the Saxon Corona Protection Ordinance is not possible in the centre.
The fact that an asylum seeker has already been persecuted in the past or has been subject to direct threats of persecution, was considered as a well-founded argument to believe that the applicant would face the risk to be persecuted under Article 1, Section A §2 of the 1951 Refugee Convention.
The High Court has issued a judgment following an application for an interim order. The matter concerns the accommodation of asylum-seekers who display Covid-19 symptoms, who bears the responsibility for accommodating asylum-seekers who are symptomatic, and the communication of policy and practice in this area.
Well-grounded information is of central importance to any decision to exclude a person convicted for criminal matters from international protection in accordance with Article 1 F of the 1951 Refugee Convention.