Case summaries

Deprivation of liberty as allowed by art. 5.1(f) of the Convention not only has to be with a view to deportation, but it also has to be in compliance with national law, and free from arbitrariness.

The submission of an asylum application does not as such imply that detention is no longer with a view to deportation.

When balancing the applicant’s right to family reunification and the protection of the rights of others in relation to the welfare of the state, which would be lessened if the application for family reunification were approved, the Supreme Court favours the latter since according to the jurisprudence of the ECtHR, countries enjoy a certain margin of appreciation when protecting the right to family life. 

In this case, the European Court of Human Rights (ECtHR) revisited the conditions of Mogadishu, Somalia as it relates to an alleged violation of Article 3 of the European Convention of Human Rights (ECHR).

In the specific case, the ECtHR held that:

1) While the general conditions of Mogadisuh remain serious and fragile, objective reports support the finding that such conditions are not sufficient to find a violation of Article 3 of the ECHR; and

2) While the ECtHR acknowledged that the applicant in the present case faces a different threat as a woman and that several objective reports described the serious and widespread sexual and gender-based violence in the country, the Court was concerned with the applicant’s credibility.

The Austrian asylum authorities have to consider every possible breach of Art. 3 ECHR (or Art. 4 CFREU respectively) when examining a Dublin transfer. A possible breach can be linked to personal circumstances of the asylum seeker and does not necessarily have to be caused by a systemic failure of the asylum system in the receiving country. A Dublin transfer is forbidden if there is a real risk of a breach of Art. 3 ECHR.

A single mother and her five minor children must be considered as particularly vulnerable and cannot be transferred from Austria to Hungary.

An Applicant’s interest in remaining in a Member State prevails over the public’s interest in deporting the Applicant to the Member State in which the Applicant first sought asylum if there is a predominant degree of likelihood that the Applicant will be subject to inhuman or degrading treatment in the other Member State (e.g. because of significant capacity problems and a change to its asylum law).

The appeal against the transfer of an asylum seeker from Germany to Hungary in the accelerated Dublin procedure is granted and suspensive effect applied to the decision. The applicant may face a risk of inhuman or degrading treatment because of systemic deficiencies in the asylum procedure and reception conditions in Hungary following the entry into force of new Hungarian laws on 1 August 2015, and because of the risk of further removal to Serbia.

The obligations imposed by Article 3 ECHR do not prevent contracting states from taking into account the possibility of relocation. Where appropriate, contracting states can expect an applicant to relocate to another part of his country of origin in order to avoid persecution.

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.