Case summaries
This case is concerned with whether an appeal against the lawfulness of an asylum applicant’s detention was allowed. Thus the prejudicial question was formulated questioning whether the measure under article 8(3)(a-b) recast Reception Conditions Directive is valid with regards to the provisions in Article 6 Charter of Fundamental Rights of the EU (CFREU) subject to Article 5 European Convention on Human Rights (ECHR).
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).
The UK Court of Appeal held that the Secretary of State’s practice of detaining people under the Detained Fast Track (DFT) system while they await an appeal for a refusal of an application for asylum is unlawful. Although permitted by a policy document, an avenue for appeal within the DFT and its procedures were neither clear nor transparent, and there was no possible justification for detaining people while awaiting an appeal.
The Respondent erred in detaining the Applicant under § 88a (1)(a) point 1 of Act No 404/2011 Coll. on the residence of aliens and amending certain other Acts in proceedings relating to administrative expulsion to the Ukraine, despite being aware of the Applicant’s intention to apply for asylum. The Respondent also incorrectly assessed whether Ukraine is a safe third country as he failed to take into account recent information on the current situation in Ukraine. Moreover, in assessing the risk of absconding, the Respondent asked improper questions. As such the Respondent's conduct violates principles of good governance.
Foreigners who have lodged an application for international protection cannot be taken into detention pending deportation as a person remaining in the country unlawfully.
If a more recent application for international protection has been lodged in the transfer country, then the Applicant will again be assigned the status of an asylum seeker in accordance with the Dublin II Regulation. The (re-)receiving country must undertake an examination of the application for asylum made in another Member State, even if it is a “subsequent application”.
Restriction of movement due to the lack of official identification papers can occur only when the Applicant raises sufficient doubt as regards the credibility of his declared identity, at which the actual circumstances of the case at hand need to be taken into account.
The restriction of movement due to the presence of the Applicant’s fingerprints in the EURODAC base is permissible only if the actual circumstances of the case at hand indicate that the Applicant might flee.