Case summaries

The Federal Administrative Court has to clarify whether the petition for action directed solely at the obligation to decide on the asylum application is admissible. The question if it is also possible to directly oblige the defendant to grant international protection or to establish prohibitions on deportation by means of an action is not the subject of the decision. As a result, the court comes to the conclusion that there was a delay by the respondent of providing the decision on the asylum application without sufficient reason and that the plaintiff has a need for legal protection for its action for failure to act.

Following on from a Rule 39 measure from the European Court of Human Rights preventing the transfer of the applicant to Bulgaria under the Dublin Regulation, the Tribunal ordered the police prefect to register the applicant's claim for asylum in France. 

The impossibility to proceed with an asylum applicant’s transfer to another Member State responsible for examining the asylum application  is established once there is a clear and real risk for the interested party to be subject to torture or inhuman or degrading treatments within the meaning of articles 3 of the European Convention on Human Rights (ECHR) and 4 of the Charter of Fundamental Rights of the European Union (CFREU), even in the absence of having serious reasons to believe there are systemic failures in the Member State’s asylum system. 

In the lack of audiovisual recording of the interview, the Judge must set the appearance hearing, otherwise being the decree issued null and void for the breach of the adversarial principle.

The request submitted by the Italian authorities to Norway to take back the applicant would imply his immediate repatriation to his country of origin, Afghanistan, which, in the light of the Court’s reasoning, is not to be considered a safe country.

Requests for family reunification must be examined even if the third-country national, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban. Whether there is a relationship of dependency between the third-country national and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis.

The fact that a person has been the subject, in the past, of a decision excluding him from refugee status cannot automatically permit the finding that the mere presence of that person in the territory of the host Member State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. A case-by-case assessment is necessary before a measure based on grounds of public policy or public security is adopted. This assessment includes weighing the threat against the protection of the rights of EU citizens and their family members.

Similarly, in order to adopt an expulsion decision with due regard to the principle of proportionality, account must be taken of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.

The State Secretary has to carefully weigh interests when deciding about the application of Article 17 (discretionary clauses) of the Dublin Regulation where it concerns an adult applicant whose family members are beneficiaries of international protection in this Member State. The fact that an earlier request for family reunification has been refused, does not imply that the potentially destabilizing effect of a Dublin transfer no longer has to be taken into consideration.

The UK Secretary of State for the Home Department’s (SSHD) refusal to accede to a take charge request of a stateless wife and her child in Greece wishing to reunite with their British husband/father in the UK is a breach of Article 7 Charter/8 ECHR (and Article 6(1) of the HRA 1998) on the basis that the SSHD’s decisions were disproportionate and not justified. Notwithstanding that the husband/father is a British citizen, the Dublin Regulation applies, notably Articles 9 and 17(2). In respect of Article 9 Dublin Regulation III, it can be relied upon even where an individual in receipt of international protection subsequently naturalises as a British citizen. 

The complainant, an Eritrean citizen and a single woman with a one-and-a-half-year-old child, filed a complaint against the decision of the Danish Immigration Service to reject her application in accordance with the Danish Aliens Act art. 29 (b) as the Greek authorities had granted her refugee status in Greece, valid until 25 November 2017. The complainant referred to the UNHCR EXCOM-conclusion no. 58/1989.

The Board did not find that the general social and economic conditions for refugees with a residence permit in Greece – although difficult – in itself could lead to the complainant not being referred to Greece as first asylum country. The Board did not find that the complainant as a single mother with a one-and-a-half-year-old child was to be considered quite particularly vulnerable. Consequently, the Refugee Appeals Board found the conditions for using Greece as first country of asylum fulfilled. The case was, however, remitted to the Immigration Service by the Appeals Board in May 2018 upon the Service's confirmation that they would consider the application in light of the applicant's residence permit having expired in Greece.