Case summaries
The Council of State concludes that the Legislative Decree 113/2018 (also referred to as ‘Salvini Decree’) that reorganises the Italian reception facilities for asylum seekers does not affect the principle of mutual trust between EU member states underpinning the Dublin Regulation. The expected limits on access to adequate reception centres, specifically for vulnerable persons, does not amount to systemic flaws in the sense of Article 3 of the Dublin Regulation.
The Spanish authorities failed to properly consider all the relevant criteria, before initiating proceedings to expel two Moroccan nationals, who were awaiting their long-term residence permits, due to their criminal convictions. The proportionality of the measure was not adequately assessed and the applicants’ social and cultural ties with both Spain and Morocco were not taken into account.
The continuation of detention beyond the period of 90 days, while the appeal against the decision rejecting the asylum application was still pending, is a disproportionate measure of deprivation of liberty for the applicant. Alternative measures must be considered.
The applicants’ personal circumstances and the general conditions in the country of origin have to be taken into account, when assessing whether an internal flight alternative exists. Relevant sources like the UNHCR guidelines have to be used. Otherwise this constitutes a significant procedural error.
According to the new 10 September 2018 French Law on Controlled Migration, there will be no criminal proceedings against individuals who have helped in the movement and illegal residence of undocumented migrants, when the aid consisted in providing legal, linguistic or social advice or assistance, or any other aid provided for an exclusively humanitarian purpose.
Criminal immunity is thus defined in a much less restrictive manner, and shall apply to acts committed before the entry into force of the new law.
The ECtHR ruled the conditions of the applicant’s detention, prior to her being deported from Cyprus, subjected her to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.
The Court decides that a beneficiary of international protection cannot be deported to a country in which the individual concerned faces a serious risk of inhumane or degrading treatment. The risk of destitution after deportation is only excluded when the receiving state authorities provide a specific, and not just a general, assurance to the individual concerned.
As a result of a transfer order to Italian authorities joined with house arrest, the applicant lodged an appeal. She argued she would be at risk of being exposed to inhuman and degrading treatments, as well as to systemic lapses of the Italian asylum system. In this case, the administrative tribunal granted annulment of those orders issued by the prefect of la Haute-Garonne in the light of the current Italian asylum conditions and the reasons motivating the applicant to reach France after having stayed in Italy.
A Member State is not required to issue a decision on its own responsibility under Dublin III when, in its capacity as the determining Member State, it found that there is no sufficient evidence to establish responsibility of another Member State. Domestic courts do not have to examine the application of the Dublin criteria ex proprio motu in the context of a review of the rejection of an application for international protection.
Religion is a broad concept that encompasses both internal elements of faith and an external component of manifestation. The applicant does not have to provide documentation and make statements on both elements but has to cooperate with the authorities and substantiate the reasons that his claim of persecution on the grounds of religion is true. The provision of the death penalty in national legislation could constitute an “act of persecution” on its own, provided that the penalty is actually enforced and regardless of whether the measure is considered important for reasons of public order in that country of origin.
The French National Court on Asylum has made an error of law by refusing to grant at the very least subsidiary protection to the applicant following his new request to re-examine his situation, despite a condemnation from the European Court of Human Rights (ECtHR) for the violation of Article 3 of the European Convention on Human Rights (ECHR).