Case summaries

Tigere (T) appealed against a decision that the legislation which prevented her from obtaining a student loan was compatible with her human right to education under Article 2 Protocol 1 and Article 14 ECHR. To qualify for a loan, the legislation specified that a student had to (a) be settled (i.e. not subject to immigration laws/restrictions) in the UK when the academic year began; (b) be ordinarily resident in England; (c) been ordinarily resident (i.e. “lawfully”) in the UK for the three years before the start of the course; and (d) their residence in the UK under ‘(c)’ was not at any point for full-time education. T was judged not to have met criteria (a) and (c).

This Case examines the refusal to grant refugee status to a Nepalese national. The Tribunal failed to provide clear, cogent reasoning for the decision. Documentation and explanations provided by the Applicant were not included in the decision. Unreasonable assumptions were made by the Tribunal including: as the Applicant’s wife, children and brother were safely residing in the country of origin, this inferred that the Applicant could do the same; since the applicant spent 6 years living safely in India, he could continue to live there safely. The High Court criticised the procedural approach by the Tribunal and the lack of coherent reasoning provided. The High Court granted leave and quashed the Tribunal’s decision.

The court overturned a decision to transfer the Applicant to his first country of asylum, Italy, on the grounds that the Prefect failed to demonstrate that Italy would have given the Applicant the relevant assurances as to appropriate reception conditions.

The court took into account the personal circumstances of the Applicant. The Tribunal found that the Prefect’s arguments were not adapted to the circumstances of the Applicant and were too general to demonstrate that transferring the Applicant to the Italian authorities would not have a substantial impact on the Applicant’s fundamental rights and the right of asylum in accordance with Article 3 of Regulation (EU) no. 604/2013 known as “Dublin III” (the “Dublin III Regulation”)  Dublin III Regulation.

The case follows on from litigation presented in M.A. v Cyprus and focuses in on the legal grounds for detention in Cyprus for an applicant who is subject to removal as well as an individual’s right to speedy judicial review of the lawfulness of detention. 

In order to justify detention, the Ministry must establish that there is a real risk that the applicant will abscond and that this is not simply a presumption. The results of the bone tests can be put to the side if the judge believes that it is impossible to determine the age of the applicant in this manner. 

The first subparagraph of Article 7(2) of the Family Reunification Directive allows the imposition of integration measures of Third Country Nationals in principle. However the general principle of proportionality requires integration measures to actually fulfil the objective of integrating TCNs and not delimiting the possibility of family reunion.

Member States must therefore consider the individual circumstances of the applicant which can lead to dispensing with the integration exam where family reunification would otherwise be excessively difficult.

The High Court approved of the claimant asylum seekers' and the defendant Secretary of State's consent order for settlement. The defendant accepted responsibility for failing to remove the claimants from the DFT, despite indicators that they were vulnerable and not suited to the DFT, and for failing to inform them about the National Referral Mechanism (NRM).

A lack of attention paid to the vulnerability of the applicants as asylum seekers and children and their subsequent exposure to conditions of extreme poverty outside the State reception system has led to a violation of Article 3 of the Convention.

The procedure of requesting the suspensive effect of a decision rejecting an asylum application and ordering the transfer of an applicant to another Member State does not amount to an effective remedy under the Convention. 

The Court expressed doubts as to whether it is constitutionally permissible to base the withdrawal of subsidiary protection on a “final conviction of a crime” without taking the circumstances of the individual case into account. The Austrian provision might not be in line with the requirements as set out by the European Union Directive 2004/83/EC and might therefore be unconstitutional.

The European Court of Human Rights held that the removal of a Syrian national of Kurdish origin to Italy would not give rise to a violation of Article 3 and 8 of the Convention.