Case summaries

On appeal to an Administrative Court, the burden of proof regarding the authenticity of newly presented evidence by a claimant to a Tribunal is on the adverse party, in the present case the Prefect.  A third country national can be returned to a country where he/she can be lawfully admitted. However, as provided by Article L.513-2 of the French Code on Entry of Foreigners and Right to Asylum,  a third country national cannot be returned to a country if the latter proves that his/her life or freedom would be threatened or he/she would be exposed treatments contrary to Article 3 of the ECHR. 

There is a real risk that, due to overcrowded accommodation, Hungary can no longer receive returning Dublin claimants. Because of inadequate shelter, the claimant and her two minor children may be subjected to accommodation conditions which contravene Article 3 of the European Convention on Human Rights. Before the return of a vulnerable Dublin claimant occurs, Hungary must first be asked to provide guarantees of adequate shelter. 

The applicants, a stateless Palestinian from Syria and two Syrian nationals, had been ordered to be expelled to Syria by the Russian authorities, and were detained in a detention centre in Russia pending this. The Court found that their expulsion to Syria would breach Articles 2 and 3, that Articles 5(4) and 5(1)(f) had been violated with regards to their detention, and that the restrictions on their contact with their representatives had breached Article 34.

Termination of an applicant’s international protection status (ie where there is a change or termination of protection grounds) must be examined against the principle of non-refoulement, which ensures the right to a fair and efficient procedure in which the Asylum authority assesses if non-refoulement would be violated where protection ceases.

It results from the principle of non-refoulement that the applicant in proceedings on termination of subsidiary protection must have the possibility to state all the reasons for which subsidiary protection should not cease.

In the process of renewal of subsidiary protection all the guarantees provided by Article 18 of the Constitution (Prohibition of Torture) should be respected.

Legislation which limited the assessment of the competent authority in the subsidiary protection renewal procedure only to the grounds based on which an individual has been granted subsidiary protection, is inconsistent with the right set out in Article 18 of the Constitution.

While accepting that Hungary is the responsible EU State for processing the applicant's asylum application (Article 18(1) Dublin Regulation III), the Court held that  a transfer to Hungary may not occur due to systemic flaws in the asylum procedure and reception conditions in Hungary,  that would  put the applicant at a serious risk of suffering inhuman or degrading treatment within the meaning of Article 4 Charter of Fundamental Rights of the European Union (CFR) and Article 3 of the European Convention on Human Rights (ECHR) (Article 3 para 2 Dublin III) .

An Applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure of an Applicant in the country to which the Applicant would be deported cannot be ensured (Hungary). 

The Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban.

The degree of indiscriminate violence in certain parts of Iraq was such as to expose persons to a real risk of serious harm within the meaning of Article 15(c) of the Qualification Directive merely due to their presence there.

However, other areas of the country (including Baghdad City) did not meet this threshold, and as such, Iraqi nationals could be forcibly returned to these areas as it would not generally be unreasonable or unduly harsh for them to internally relocate there. 

The Supreme Administrative Court attempted to answer the question whether the objective criteria for identification of the “existing risk of absconding” in order to apply Article 28(2) of Dublin III Regulation have to be set out in an act of parliament, or whether the wider interpretation of the phrase “defined in law” contained in Article 2(n) of Dublin III Regulation should be adopted. The court decided to refer a preliminary question to the CJEU.  

Whilst the Appeals Committee believes that the applicant was ‘wronged’ during the administrative procedures in the First and Second Degree (pursuant to Decree 113/2013), the Committee is unable to request a new personal interview, because no such provision exists within the national legislation (Regulation Service of Authority and Appeal 339/2013 opinion of the Legal Council).