Case summaries
In case a further extension of the detention order inside an Identification and Expulsion Centre is requested by the Police Commissioner, the procedural right to be heard should be granted to the applicant. If the applicant raises an objection to the violation of his right to be heard, the requested authority shall inform of the grounds for refusing to acceede to the applicant’s argumentation. Otherwise the detention order is to be considered invalid.
The physical border around the enclave of Melilla is conformed by two fences and the intermediate zone created between them. The Spanish military police (Guardia Civil) considers that until a migrant has not overcome the second fence he or she has not entered into Spanish territory and therefore, Spanish law, including the Organic Act 4/2000 on the Rights and Liberties of Foreigners in Spain and their Social Integration (“Aliens Act”), does not apply to a migrant apprehended in the intermediate zone.
The Court ruled that, although this interpretation may violate international law, since there is no clear definition under Spanish law of where the border is located, the direct refusal of migrants who have reached the intermediate zone, does not constitute an administrative prevarication offence.
The Act on International Protection (AIP) does not provide for a legal basis to deprive an asylum applicant of their liberty (which is the case when the applicant is placed in a closed centre for irregular migrants, termed the “Centre for Foreigners”), but only for the restriction of movement (which can be the case when the movement is restricted to the area of the reception centre for asylum seekers).
Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland. Such an obligation is not formulated directly in the decision itself, but is based on the legal provisions in place. Therefore, the present decision does pose a direct threat of irreparable consequences for the applicant.
Granting temporary protection, by suspending the decision under which the applicant is obliged to leave the territory, allows for the standards of fair trial and the right to court (which covers the right to a fair trial as well as the right to have the case examined, including to be delivered by a ruling), thus going further than just the right to have the case examined.
This is the subsequent Supreme Court ruling following the preliminary reference ruling by the CJEU in C-604/12 in relation to the examination of subsidiary protection within the asylum procedure in Ireland. The case also addresses the legality in EU law of the two stage procedure in Ireland and the lack of a single asylum procedure.
Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland within 30 days. If this obligation is not fulfilled, it constitutes a basis for the Border Guard to launch return proceedings. Only the return decision can be forcibly executed. Therefore, the present decision does not pose a direct threat of irreparable consequences for the applicant.
Taking into account the character of the procedure before an administrative court - within which facts of the case are not being established, but only points of law can be litigated and the applicant is represented by a professional legal representative – it cannot be stated that the absence of the applicant would limit his right to court.
An applicant’s interest in remaining in a Member State pending a decision on their right to remain will prevail if, due to a lack of knowledge about the actual living situation of refugees in the third country and negative public reports regarding such situations, there can be no assurance that the applicant will be safe in said third country.
The State is obliged to adopt legislation which allows the refugee to actually exercise the right to respect for family life in its territory. Under Article 53(3) of the Constitution of the Republic of Slovenia the scope of family life firstly includes the nuclear family and secondly, where specific factual circumstances dictate, members of the family who are not nuclear but who are similar or perform the same function.
The legislator limited the right to family reunification by enacting an exhaustive definition of eligible family members for reunification, excluding any other form of family unity. According to the Constitutional Court, the legislator disproportionately restricted the right of refugees to respect for family life and violated the right of the appellant under the Article 53(3) of the Constitution.
In light of the provisions of Article 5 Dublin III Regulation, which serve to protect the asylum seeker in a Dublin transfer, the individual subject to a Dublin transfer decision must be seen to have a subjective right to a personal interview. Before such an interview, which must take into account the subjective perspective of the individual, has been conducted in a manner which meets the criteria of Article 5 of Dublin III, the authorities cannot conclude that no obstructions to the removal are present.
Where negative reports regarding the reception conditions and inhuman or degrading treatment in a first country of asylum indicate that an Applicant may not be safe in such a country, an Applicant’s request to remain in a Member State pending a decision on their right to remain must be given the benefit of doubt and outweigh the public’s interest in immediate enforcement of the ordered transfer.