Case summaries
The absence of an individual right of the applicant to challenge the determination of the State responsible to examine their asylum claim on Dublin II grounds does not prohibit the autonomous application of ECHR Article 8 to decisions to remove persons from one Member State to another. However, taking into account the significance of the Regulation and the need to preserve its effectiveness, an especially compelling case would have to be demonstrated to deny removal following a Dublin II decision. When the Secretary of State has certified such human rights claims as clearly unfounded, it must be shown that the same decision could have been reached on reasonable grounds by an immigration judge.
The concept of family life under Article 8 ECHR and under the Portuguese Constitution requires the existence of an effective connection between the individuals, which also presupposes the existence of a financial interdependency.
In case of conflict between a domestic and international norm the Court is obliged to adhere to the latter and set aside the former. Given the well-established right to an effective remedy in international and European instruments, an element of which relates to the remedy’s timeliness, the court is obliged to remake the OIN’s subsidiary protection decision and provide the applicant with refugee status. This conclusion applies notwithstanding that domestic legislation prohibits the Court from reforming an OIN decision. To abide by this legislation would result in a never-ending appeal procedure thereby rendering the remedy ineffective.
The applicants are Afghan nationals married religiously in Iran when the first applicant was 14 years old and the second applicant 18 years old. When they applied for asylum in Switzerland a year later, the Swiss authorities did not consider them as being married and the second applicant was subsequently expelled to Italy. They alleged that this expulsion constituted a violation of their Article 8 ECHR right to respect for family life. The Court found that the Swiss government had been justified in finding that they were not married, and held that the decision to expel the second applicant was not a violation of Article 8.
The Council of State requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on the compatibility of Belgian Law with Article 5 of Directive 2008/115/EC (the “Directive”). The Directive requires Member States to respect the principle of non-refoulement, as well as ensure that there is a right to an effective remedy.
Under Belgian Law, the Commissioner-General for Refugees and Stateless Persons (the “Commissioner”) can dismiss an asylum application and issue an order to leave the territory (“Return Order”), before any judicial appeals or other asylum procedures have been exhausted.
The question in the current case was whether the relevant Belgian legislative provisions were contrary to the Directive. The proceedings were suspended pending a preliminary ruling by the CJEU (C-77/17 and C-78/17).
The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims. A further right to appeal remained with the Cypriot Supreme Court. The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.
The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR. The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.
A refusal to permit re-unification of family members with a child granted asylum in the United Kingdom can constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR despite the Immigration Rules not providing for family reunification where a child has been granted asylum in the UK.
Same-sex couples are not excluded from the ambit of the Convention’s family life and cohabiting is not a pre-requisite of establishing family life.
A difference in treatment between persons in relevantly similar positions has occurred in this case since the Croatian Aliens Act has made no provision for same-sex couples seeking a residence permit to join their respective partner, whereas it did contain provisions relating to married and unmarried different-sex couples. The applicant had, therefore, experienced a difference in treatment based on her sexual orientation which had not been justified with weight reasons by the Croatian government. Croatia had, thus, violated Article 14 read in conjunction with Article 8.
According to § 42 f of the Eighth Book of the Social Security Code, the assessment of whether an applicant is a minor is determined by inspecting identification papers. If conclusive identification papers are not available, then the disclosure of information by the person concerned may be taken into account. When in doubt, the determination of age can take the form of a qualified inspection in accordance with § 42 f (1) of the Eighth Book of the Social Security Code. In this respect, one should take into account not only the visual appearance of a person, but also the information obtained during the conversation, which shows the mental age of the person.
The considerable delays of receiving an appointment at the Prefect in order to register an asylum application means that applicants are deprived of legally entitled guarantees, notably material ones. Consequentially such delays constitute a serious and manifestly illegal infringement upon the fundamental right to asylum.
The Police Prefect must register the asylum application within 10 days of the notification of this decision.