Case summaries

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. 

The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.

The Secretary of State had appealed the decision of the FTT (supported by the Upper tribunal) on several grounds of error in law. The Court upheld the tribunal on the issue of whether they had considered the gravity of the respondent’s offences  (section 72 of the 2002 Act); but found that the tribunals had indeed erred when considering the application of Article 1C(5) of the Refugee Convention, and on the applicability of Article 8 ECHR. They consequently remitted the case of MM’s deportation to the Upper Tribunal for re-examination in its entirety, based on these errors in the previous decisions. The statement of the referral left open for the respondent the possibility of an appeal on the basis of Article 3 ECHR. 

The imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.

In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.

An applicant may be granted refugee status under Article 1 of the 1951 Geneva Convention for fear of persecution based on sexual orientation. This depends on whether or not, according to the conditions prevailing in the country of origin, persons sharing a sexual orientation may be regarded as a social group within the meaning of the Convention.

The Court rejected the Applicant's challenges to the respondent's decision to certify his asylum claim and deport him, on the grounds (i) of his mistaken assessment of his probable situation if deported to Italy, (ii) of his misreading of the Dublin III Regulation, specifically insofar as it applies to effective remedy.