Case summaries

The use of forged documents by asylum seekers, when attempting to flee from one country and seek protection under international law in another country, is not criminally liable, when it is the result of a well-founded fear for inhuman or degrading treatment.

The appellant claimed that the Tribunals in their determinations had failed to give adequate reasons for their conclusions, in particular that the appellant had not demonstrated well-founded fear. The Court considered the grounds for this claim and found that since we should ‘avoid a requirement of perfection’ (para 26) they were not sufficient to establish that the tribunals had erred, nor that the claimant was at risk of persecution.

The Immigration and Asylum Office unlawfully rejected the claimant’s application for international protection. The court found that the authorities did not objectively assess the evidence and country information provided by the claimant, a Coptic Christian from Egypt. They also failed to correctly interpret the definition of a refugee in accordance with international law and disregarded the special status of the claimant who was an underage applicant.

The benefit of the doubt benefits the minor.

Effective access to justice relies on an individual having a voice in the proceedings concerning him or her. Solely focusing on the credibility of the appellant’s account and not having regard to objective evidence testifying to the appellant’s vulnerability or the risk to the appellant of return to Afghanistan has led to the proceedings being neither fair nor just. A material error of law has therefore been committed. 

The Tribunal reasserted the decision maker’s duty of confidentiality in considering documents produced in support of a protection claim. Where there is a needed to make an inquiry in the country of origin then written consent must be given by the applicant. Moreover, Article 22 of the Asylum Procedures Directive prohibits direct contact with the alleged actor of persecution. Additionally, the Refugee Convention requires that the authentication of a document is undertaken with a precautionary approach, namely whether an inquiry is necessary or should be framed in a specific manner and whether there is a safer alternative. Ultimately, disclosure of personal information should go no further than is strictly necessary.

The Tribunal found that the respondent was unlikely to have breached confidentiality in her inquiries into the authenticity of the documents produced; and that if she had, the remedy would not be the grant of refugee status; and that the appellant had not established that he had a credible case for asylum on the basis of the documents submitted. Nonetheless the Tribunal highlighted that a failure to comply with the duty of confidentiality might be relevant to the overall assessment of risk on return. 

The Constitutional Court ruled that Section 5(3) Nr. 4 NÖ MSG, which excludes beneficiaries of subsidiary protection from benefiting from social assistance out of the means-tested minimum income scheme when the person already receives social assistance covered by NÖ GVG is compatible with constitutional rights. It held that it does not constitute a violation of the principle of non-discrimination amongst foreigners. Given the provisional character of residence rights for beneficiaries of subsidiary protection such a legal rule falls within the wide margin of appreciation of the legislator.

The applicant, a Jordanian citizen feared that her eldest daughter who was 17 years old would be forced by the applicant’s in-laws to marry a cousin. The Refugee Appeals Board noted that the daughter had an asylum motive of her own and according to Article 12 of the Convention on the Rights of the Child she had a right to be heard. To ensure a two-tier hearing and adjudication the Board remitted the case to the Danish Immigration Service.

Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.

The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children.