Case summaries
The Constitutional Court allowed an appeal against a decision to expel a single mother and her three minor children to Greece. It is necessary that Greece ensure appropriate accommodation will be provided for vulnerable persons in each case. The applicants are vulnerable persons and the lack of assurance from Greece, therefore, gave rise to a real risk of a violation of Art 3 ECHR.
The Applicant submitted applications for the assignment of a legal adviser and legal aid at the same time as his appeal. The Asylum Court rejected the appeal and the applications for the assignment of a legal adviser and legal aid as inadmissible. The Constitutional Court of Austria revoked this finding with reference to Art 15 Procedures Directive: the Asylum Court should not have been permitted to reject the applications for the assignment of a legal adviser and legal aid, but should have pronounced a judgment on the merits by means of a separate decision that could be challenged with a legal remedy.
After the applicant absconded the time frame for a deportation was extended by 18 months and, therefore, Poland’s original acceptance was still valid at the time of the second application. Art 7 Dublin II Regulation is not applicable because the applicant’s family life was established after his first application for asylum. There is no violation of Art 8 ECHR because the applicant’s family life was formed at a moment when the applicant did not know whether he would be able to maintain it.
The case concerned a subsequent application for international protection based on the right to a family and private life (Art 8 of the European Convention on Human Rights (ECHR)) The application was rejected as inadmissible by the Ministry of Interior (MOI) on the basis that Art 8 considerations were deemed not applicable in asylum cases. However, the Supreme Administrative Court (SAC) made two important findings. Firstly it held that even if an application was considered to be inadmissible, there was an obligation to evaluate the risk of refoulement under Art 33 of 1951 Refugee Convention. Secondly, as provided by § 14(a)(2)(d) of the Asylum Act, in exceptional cases, to grant international protection for family life reasons, these have to be accepted as new elements in subsequent proceedings.
The applicants, a family of four from Iran, were deported back to Iran from Turkey after having been granted refugee status by the UNHCR. The applicants challenged the lawfulness of their detention, claimed that they were not offered an effective remedy prior to their deportation and that they were at risk of persecution upon their return to Iran.
The Applicant, S.H., is a Bhutanese national of ethnic Nepalese origin who currently lives in Huddersfield. He claimed asylum in the UK, but the application was refused and he was served with removal directions. Prior to his removal, the Court indicated to the United Kingdom Government that he should not be expelled. Relying on Article 3 (prohibition of inhuman or degrading treatment), the Applicant complained that his removal to Bhutan would expose him to a risk of ill-treatment on account of his ethnicity, his status as a failed asylum seeker, and as the close relative of a human rights activist who has been granted asylum in the United Kingdom.
Where the situation described in Art 15(c) of the Qualification Directive does not occur in all parts of the country of origin, it must be assessed in respect of the distinct area of the country from which the applicant originates.
Although gender based persecution is not expressly mentioned among the reasons for recognising refugee status, the UNHCR Guidelines on claims to refugee status in cases involving gender based persecution, as cited by the Applicant, indicate that gender based persecution falls within the broader category of persecution for reasons of membership of a particular social group.
Although physical persons acting on their own behalf do not constitute typical perpetrators of persecution, they may be regarded as actors of persecution within the meaning of the Convention in cases where public authorities are unable or unwilling to protect an individual against their activities.
The conditions for applying an exclusion clause can be fulfilled without considering if there are grounds for granting protection.
The right to family life can outweigh the ‘state responsibility’ criteria in the Dublin II Regulation. The Court held that the application for asylum should be processed in Sweden, in order to secure the right to family and private life (Art 8 of the European Convention on Human Rights), despite the fact that another State was responsible under the Dublin II Regulation.