Case summaries

The CJEU ruled on  the scope of the right to an effective remedy provided for in Article 46 of the (Recast) Asylum Procedures Directive and in Article 13 of the Returns Directive.

CJEU rules that Hungarian national law which defines ‘serious crime’ (in the context of exclusion from subsidiary protection) as a crime with a possible custodial of 5 years sentence as incompatible with the Qualification Directive. Instead, each crime must be looked at on an individual basis to ascertain its “seriousness”.  

The Court examines the individuals’ circumstances and finds that the appointment with the French authorities to register and assess their asylum cases within a three-month period, coupled with the possibility for the applicants to stay in a foster home at night, access education, healthcare and meals provided by organisations during the day, cannot amount to treatment prohibited under the Convention.

After being notified of his return decision, set to take place on the same day, the applicant requested an interim measure on Article 3 ECHR grounds in the morning but was nonetheless expelled to Morocco in the afternoon. The Court found no violation of Article 3, regarding the applicant’s expulsion to Morocco, by taking into account subsequent information. It found a violation of Article 34 of the Convention, owing to the fact that the applicant had no sufficient time to file a request to the Court, hence running the risk back then of being potentially subjected to treatment prohibited by the Convention.

The judgment deals with the admissibility of the execution of an expulsion order of an Eritrean who illegally left the country. Despite the assumption that the entry into the national service in the country of origin constitutes forced labour within the meaning of Art. 4 para. 2 ECHR, enforcement is permissible since there was no flagrant violation of Art. 4 para. 2 ECHR.

Following on from a Rule 39 measure from the European Court of Human Rights preventing the transfer of the applicant to Bulgaria under the Dublin Regulation, the Tribunal ordered the police prefect to register the applicant's claim for asylum in France. 

The applicant, an Algerian national convicted in France for terrorism and banned from entering French territory in 2006, was sent back to Algeria in 2014, on the day he was notified of the rejection of his asylum claim and of the issuance of his return order. The Court found that the French authorities violated Article 34 of the Convention by carrying out the applicant’s transfer despite the Court’s interim measure. It also found that France violated Article 3, in the light of the general information regarding the situation of people suspected of international terrorism in Algeria.

The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application  is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system. 

Member States can issue a return decision together with, or right after, a negative decision on an asylum application at first instance, as long as they ensure that all judicial effects of the return decision are suspended during the time allowed to appeal and pending that appeal.

During that period, and despite being subjected to a return decision, an asylum applicant must enjoy all the rights under the Reception Conditions Directive. The applicant can rely upon any changes in circumstances affecting his claim that came up after the return decision, before the appeals authority.