Case summaries

The Austrian asylum authorities have to consider accurately and comprehensively the changes in the legal situation and the development of the actual situation of asylum seekers in Hungary when deciding on a Dublin transfer to this country.

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit request by the appellant, does not constitute a grave violation of procedural rules. The relevant provisions does not provide for any legal consequences for such failure to act. However, this interpretation is not mandatory due to the lack of explicitly regulated legal consequences and requires further clarification by the Supreme Administrative Court. 

The applicant, an Iranian national, had fled Iran in light of the risks he faced there as a political dissident, and had been detained in Greece with a view to being expelled to Iran. The Court held that the Greek authorities had violated Articles 3 concerning his conditions of detention, 3 and 13 combined because of the lack of an effective remedy to complain about these conditions, the failings of the asylum procedure and the risk of being sent back to Iran, and 5(4) with respect to the inefficient judicial review of the detention.

Non-Citizen children of the State have rights protected by the Constitution when in the State, including rights under Article 41, 42 and 40.3. However, the right to reside in the State is a protection under Article 40.3 which is reserved for Irish citizen children. It is the citizenship of the child that confers this right to live in the State under Article 40.3.

The best interests of the child are considerations that must be assessed when deciding upon a deportation order for a child. However, as the Convention on the Rights of Child has been ratified by Ireland but has not been implemented as part of domestic law, the Court is not bound to view the best interests of the child as the primary consideration.

The right to private life under Article 8 ECHR can involve social and community ties in the host State. The right to private life involves an assessment of a person’s right to moral and physical integrity. Where such rights are engaged a decision relating to the removal of a person from the State must be assessed against the gravity of the consequences on such ties.

When considering if the right to respect for private life is engaged in relation to an individual who has never been permitted to reside in the host State (other than pending a decision on an asylum claim), it is permissible to take into account that the private life developed at a time when the right of the individual to remain in the State is precarious.

Tigere (T) appealed against a decision that the legislation which prevented her from obtaining a student loan was compatible with her human right to education under Article 2 Protocol 1 and Article 14 ECHR. To qualify for a loan, the legislation specified that a student had to (a) be settled (i.e. not subject to immigration laws/restrictions) in the UK when the academic year began; (b) be ordinarily resident in England; (c) been ordinarily resident (i.e. “lawfully”) in the UK for the three years before the start of the course; and (d) their residence in the UK under ‘(c)’ was not at any point for full-time education. T was judged not to have met criteria (a) and (c).

In this case, the European Court of Human Rights (ECtHR) analysed:

1) whether the conditions that the applicant faced when he was detained in Latvia violated Article 5(1) of the European Convention of Human Rights (ECHR); and

2) whether the appellate proceedings violated Article 5(4) of the ECHR. 

Although the ECtHR held that the conditions in Latvia’s detention centre complied with Article 5(1) and that the appellate courts provided an effective review of the applicant’s detention under Article 5(4), the ECtHR nevertheless found that the appellate proceedings failed to provide the applicant with a speedy decision under Article 5(4). 

The case follows on from litigation presented in M.A. v Cyprus and focuses in on the legal grounds for detention in Cyprus for an applicant who is subject to removal as well as an individual’s right to speedy judicial review of the lawfulness of detention. 

The High Court approved of the claimant asylum seekers' and the defendant Secretary of State's consent order for settlement. The defendant accepted responsibility for failing to remove the claimants from the DFT, despite indicators that they were vulnerable and not suited to the DFT, and for failing to inform them about the National Referral Mechanism (NRM).

A lack of attention paid to the vulnerability of the applicants as asylum seekers and children and their subsequent exposure to conditions of extreme poverty outside the State reception system has led to a violation of Article 3 of the Convention.

The procedure of requesting the suspensive effect of a decision rejecting an asylum application and ordering the transfer of an applicant to another Member State does not amount to an effective remedy under the Convention.