Case summaries
Analysing the legality of the refusal to grant child benefit payments to parents who are not habitually resident within the State for the benefit of their children.
1. Do the ‘international obligations’, referred to in Article 25(1)(a) of Regulation No 810/2009 1 of 13 July 2009 establishing a Community Code on Visas cover all the rights guaranteed by the Charter of Fundamental Rights of the European Union, including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations which bind the Member States, in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention Relating to the Status of Refugees?
A. In view of the answer given to the first question, must Article 25(1)(a) of Regulation No 810/2009 of 13 July 2009 establishing a Community Code on Visas be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights of the European Union or another international obligation by which it is bound is detected?
B. Does the existence of links between the applicant and the Member State to which the visa application has been made (for example, family connections, host families, guarantors and sponsors) affect the answer to that question?
The case concerned an application for judicial review of the decisions made on behalf of the Secretary of State to transfer the applicants to Malta, on the basis that such jurisdiction was the proper place for considering the applicants’ asylum claims. The applicants argued that such transfer would violate their rights under Article 18 of the Charter of the Fundamental Rights of the European Union (EU Charter) to have their asylum application determined within a reasonable time and on the basis of a fair procedure, as the Maltese asylum system had several shortcomings and contains procedures that are illusory or too slow. Dismissing the application, the Tribunal concluded that there was no evidence to support the argument that the applicants’ Article 18 rights would be violated if they were transferred to Malta.
A renewed application for asylum in a second country is admissible if the nature of international protection applied for differs from the protection already granted. Deportation to the country of the first application or the country of origin is not to be taken into account in this situation.
The Court quashed the decision of the Office of Immigration and Nationality (OIN) because it did not assess the Applicant’s fear of persecution in a due manner and held that there is a real internal flight alternative in an erroneous way, without due regard to the jurisprudence of the Court of Justice of the EU (CJEU)
The decision of denying asylum is disproportionate, as the fact that the acts of persecution are indiscriminate and affect a large majority of the population do not exclude the application of the 1951 Convention when the necessary elements of the provision are present. The reports of UNHCR were also noted in the Court’s assessment, particularly regarding the risk groups that the organisation has characterised.
A subsequent application is not admissible unless the interested party presents new facts or elements relating to his personnel situation or to the situation in his country of origin, out of which he could not have had knowledge of previously, and likely, if they have probative value, to modify the appreciation of the legitimacy or the credibility of the application of the interested party.
The director general of OFPRA was right to find that the elements that the applicants presented before him did not significantly increase the probability that they would meet the qualifying conditions to claim protection and that their subsequent applications were inadmissible, without having undertaken a hearing before making the decision on inadmissibility.
An Applicant’s interest in remaining in a Member State pending a final decision on his asylum status prevails over the public’s interest in immediate enforcement of an ordered transfer if the appropriate asylum procedure of an Applicant in the country to which the Applicant would be deported cannot be ensured (Hungary).
An application to establish the suspensive effect of a pending appeal pursuant to Section 80, Paragraph 5 of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) is not a legal remedy under Article 20, Paragraph 1 (d) of Council Regulation (EC) No 343/2003 of 18 February 2003 (“Dublin II Regulation”). A German court’s dismissal of a Section 80, Paragraph 5 application does therefore not suspend the 6-month deadline under Article 20, Paragraph 2 of the Dublin II Regulation for a member state of the European Union (“Member State”) to transfer an applicant to a Member State that has accepted (actually or implicitly) a request to take charge.
The judgment concerns the scope of Article 21 of Council Directive 2004/83/EC of 29 April 2004 with regards to derogation from protection from refoulement and the possibility to revoke a residence permit issued to a refugee pursuant to Article 24 of said Directive.