Case summaries

This case dealt with the issue of whether the Supreme Court’s four-stage test for the determination of sexual orientation asylum claims, set out in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department (“HJ (Iran)”), still held good, specifically the third and fourth stages which draw the distinction between those who would conceal their sexual orientation and whether the material reason for that is fear of persecution or for other reasons.
 

The Federal Supreme Court rules that the separate detention of families with minor children and the placement in a children’s home violates the right to family life in Art. 8 ECHR, if less intrusive measures than detention have not been taken into consideration.

Following the careful examination of International, European and domestic law, the Court concluded that the grant of refugee status supersedes any order made by a Family Court (regarding the return of the child to Pakistan), because it is the Secretary of State for the Home Department  that is the entrusted public authority to deal with asylum matters.  However, were the Family Court to discover new facts, the relevant public authority would be responsible, in principle, under the tenets of UK Administrative Law to review their decision. 

The fact that the membership of a particular social group is not subject to specific repressive criminal provisions has no incidence on the granting of refugee status.

An application to suspend the effects of a decision, contained in an appeal of a decision ordering return and a ban from re-entering the territory of Poland and other Schengen area states should be allowed, due to the validity of the Applicant remaining in Poland pending the conclusion of the administrative court proceedings. Under art. 61 § 3 of the Act on Proceedings before Administrative Courts, the Court may, upon the application of the Appellant, order that the challenged decision be suspended, in whole or in part, if the act or function to be performed would result in a risk of significant harm or other consequences which are difficult to reverse.

The Court quashed the decision of the Office of Immigration and Nationality (OIN). The OIN based its decision on classified information obtained from the Constitutional Protection Office (CPO), which stated that the Applicant poses a threat to Hungary’s national security, and that he shall not be granted protection, with due regard to Article 1 f) c) of the Geneva Convention. The OIN failed to communicate the CPO’s opinion to the Applicant for nine months. The Court assessed that the proceedings were ‘exceptionally unlawful’.

The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa. 

The application of S.C. and her minor children Z.C. and F.C. related to the cassation of an Appeal Court judgement regarding compensation for the harm they suffered as a result of an indisputably unjust decision to place the Applicants in a Guarded Detention Centre for Foreigners. The Supreme Court reversed the challenged judgement and passed the case to the Appeal Court for re-consideration. 

It is not reasonably likely that a draft-evader would face criminal/administrative proceedings in Ukraine but there is a real risk that a person sentenced to imprisonment in Ukraine would be detained on arrival there and that detention conditions would breach Article 3 ECHR.

Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.

If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.

It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.

Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.