Case summaries
The appeal against the transfer of an asylum seeker from Germany to Hungary in the accelerated Dublin procedure is granted and suspensive effect applied to the decision. The applicant may face a risk of inhuman or degrading treatment because of systemic deficiencies in the asylum procedure and reception conditions in Hungary following the entry into force of new Hungarian laws on 1 August 2015, and because of the risk of further removal to Serbia.
Whilst the Long Term Residence Directive (LTRD) allows for the imposition of fees relating to the issuance of a residence permit such measures must adhere to the principles of proportionality and abide by the Directive’s effectiveness.
The frequent payment of a fee which is on top of a pre-existing fee creates an obstacle to the obtaining of the long-term resident status conferred by the LTRD.
The obligations imposed by Article 3 ECHR do not prevent contracting states from taking into account the possibility of relocation. Where appropriate, contracting states can expect an applicant to relocate to another part of his country of origin in order to avoid persecution.
The Austrian asylum authorities have to consider accurately and comprehensively the changes in the legal situation and the development of the actual situation of asylum seekers in Hungary when deciding on a Dublin transfer to this country.
If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.
In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court.
An Applicant with Syrian citizenship applied for asylum in Sweden. The Migration Court of Appeal found that (i) Armenia was considered a safe third country, and (ii) that the Applicant had such a connection to Armenia that it was reasonable for the Applicant to go there, given that the Applicant’s mother was from Armenia, Armenian was the Applicant’s native language, the Applicant was born and spent his first years in Armenia, and the Applicant had voluntarily returned to Armenia as an adult to study. The Applicant’s asylum application was rejected.
The statement that the applicant can relocate within his country of origin is based solely on general information on Ukraine, without paying attention to his personal circumstances and conditions in the places he could be expected to settle in.
In the decision there is no reference to the applicant’s age, occupation, family situation, employment and housing opportunities, as well as his registration and the level of assistance he could benefit from if returned. The burden of proof to show that the personal circumstances of the applicant are not sufficient to counter a refusal of international protection on the basis of the internal protection alternative lies with the State authority.
The main question is whether the applicant can be sure that he will obtain assistance allowing for certain standards of living. The state assistance is significant here, as the applicant has no family or friends in the part of the country of origin under control of Ukrainians.
General situation in the country of origin, however difficult, does not justify granting refugee status, if there is no or only some small risk of persecutions (such risk can never be actually eliminated). However the authority is obliged to individually assess the situation of a particular applicant. This is not possible without careful examination of all the letters submitted by the applicant during the proceedings before the first and the second instance. Failure to do this cannot be validated by the Court by determining the facts on its own, since it would lead to de facto depriving the applicant of his right to have the case examined in two administrative instances.
An application to establish the suspensive effect of a pending appeal pursuant to Section 80, Paragraph 5 of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) is not a legal remedy under Article 20, Paragraph 1 (d) of Council Regulation (EC) No 343/2003 of 18 February 2003 (“Dublin II Regulation”). A German court’s dismissal of a Section 80, Paragraph 5 application does therefore not suspend the 6-month deadline under Article 20, Paragraph 2 of the Dublin II Regulation for a member state of the European Union (“Member State”) to transfer an applicant to a Member State that has accepted (actually or implicitly) a request to take charge.
Non-Citizen children of the State have rights protected by the Constitution when in the State, including rights under Article 41, 42 and 40.3. However, the right to reside in the State is a protection under Article 40.3 which is reserved for Irish citizen children. It is the citizenship of the child that confers this right to live in the State under Article 40.3.
The best interests of the child are considerations that must be assessed when deciding upon a deportation order for a child. However, as the Convention on the Rights of Child has been ratified by Ireland but has not been implemented as part of domestic law, the Court is not bound to view the best interests of the child as the primary consideration.