Case summaries

A decision by the State Secretary for Security and Justice (the “State Secretary”) of the Netherlands will be in violation of: (i) Article 3.37e of the Foreigners Regulation 2000 if such decision, regarding whether a country qualifies as a safe third country, is not based on several information sources; and/or, (ii) Articles 3.2 and 3.46 of the Dutch General Administrative Law Act on the basis that all decisions of the State Secretary are required to (a) be carefully prepared and (b) include a decisive motivation.

The case considered an application against the decision of the Secretary of State refusing to consider the merits of the Claimants’ contentions for asylum, on the basis that Hungary was considered to be a “safe” country that would presumably comply with its EU and international legal obligations. The Claimants argued that they would be at risk of refoulement to Iran if removed to Hungary, in breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The Claimants further argued that along the way, they would be at risk of detention in conditions and circumstances amounting to an unlawful violation of their fundamental right to freedom and liberty under Article 5(1)(f) ECHR. The court held that removal of the Claimants to Hungary gives rise to a real risk of chain refoulement to Iran.  However, there was insufficient evidence to make out breach of Article 5 ECHR. 

The Slovenian legislature has not fulfilled its obligations under the provisions of Article 2(n) of the Dublin Regulation. The possibility of an analogous application of Article 68 of the Aliens Act-2 has a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.

In cases of reasonable suspicion that a person applying for asylum was a victim of human trafficking, the Swiss State Secretary for Migration is obliged to clarify the facts thoroughly on its own initiative.

 The transfer of “extra vulnerable” asylum seekers from the Netherlands to Italy is contrary to article 3 ECHR.

This case examines whether, for a subsequent application, internal review followed by Judicial Review is an effective remedy, as provided by Article 39 of the Council Directive 2005/85/EC (“the Asylum Procedures Directive”).

An asylum seeker who was interviewed by telephone during his detention in the waiting zone by an officer of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) in premises which were not subject to OFPRA’s director general’s prior approval has not benefited from the appropriate procedural guarantees attached to the examination of his application.

Consequently, the Ministry of Interior’s order rejecting Mr D’s request to enter the French territory, which was taken in light of an OFPRA opinion given in such circumstances, must be annulled.

The Applicants applied for asylum in Sweden, stating that they had arrived from Syria. However, investigations showed that the Applicants had entered Hungary via Serbia and applied for asylum in Hungary prior to arriving to Sweden. The Migration Court of Appeal found that the Hungarian asylum procedure and reception conditions did not contain such substantial deficiencies, that it was impossible to transfer the Applicants to Hungary in accordance with the Dublin III Regulation. However, two of the Applicants were small children, and had the Applicants been transferred to Hungary there was an imminent risk of lengthy waiting periods and a long period in custody before the Applicants could have their applications examined, which would have a considerable negative effect on the children’s health and development. Therefore, according to the Migration Court of Appeal a transfer of the Applicants under the circumstances was not consistent with the principle of the best interests of the children. With rejection of the Migration Agency’s complaint, the Applicants’ asylum applications were to be examined in Sweden.

If an Applicant, whilst his asylum application is being processed, is held in a limited area, this may be in contravention of Article 5 of the European Convention on Human Rights (“ECHR”). In determining this, the Court may take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.