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Finland - Supreme Administrative Court, 7 December 2011, KHO:2011:98
Country of applicant: Russia

According to the residence permit application, the Applicant, born in 1935, has various ailments and he is fully dependent on his daughter who lives in Finland and is a Finnish citizen.  In an interim order, the Administrative Court turned down the Applicant’s non-refoulement argument  and held that judgment would be made on the substantive issue at a later date.  While the substantive issue was still pending at the Administrative Court seeking a stay on the execution of the interim order so that he would not to be deported while the Administrative Court decided on the substantive issue (a ‘repeal’ application).  As according to national legal provisions, a repeal application can only be made on a judgment  which has entered into force, the repeal application was inadmissible. Administrative Court, the Applicant applied to the Supreme

Because the failure to accept the non-refoulement argument might render the appeal on the substantive issue de facto ineffective, in order to guarantee the Applicant’s legal protection, in exceptional circumstances there was reason to carry out a review to determine whether his appeal should be handled  by the Supreme Administrative Court without it being detrimental to the final decision under Section 58 of the Administrative Procedure Act and Section 199 Article 2 of the Aliens Act. 

Date of decision: 07-12-2011
Relevant International and European Legislation: Art 39,Article 47,Article 3,Article 13
Austria - Constitutional Court (VfGH), 05 December 2011, U2018/11
Country of applicant: Armenia

Because the Asylum Court refused the appeal only one day after service of the ruling on the appointment of a legal advisor, the Applicant was not granted an appropriate period of time to use the legal advice and any representation in the proceedings and it was therefore made impossible for him to exercise his rights effectively in the proceedings.

Date of decision: 05-12-2011
Relevant International and European Legislation: Art 15,Art 16,Article 47,Article 13
UK - Upper Tribunal, 28 November 2011, AMM and others v Secretary of state for the Home Department [2011] UKUT 00445
Country of applicant: Somalia

In this case the Tribunal considered the general country situation in Somalia as at the date of decision for five applicants, both men and women from Mogadishu, south or central Somalia, Somaliland and Puntland. The risk of female genital mutilation (FGM) was also considered.

Date of decision: 28-11-2011
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,1951 Refugee Convention,Art 15 (c),Art 15 (b),Art 2,Art 9,Art 10,Art 8.1,Art 13,Art 1A,EN - Charter of Fundamental Rights of the European Union,Article 18,Article 47,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 3
CJEU - C-69/10, Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration
Country of applicant: Mauritania

The right to an effective remedy under EU law does not require the specific preliminary decision to place an applicant for international protection under the accelerated procedure to be itself subject to judicial review, provided that this decision is reviewable as part of judicial consideration of the final substantive decision to grant or refuse protection.

Date of decision: 28-07-2011
Relevant International and European Legislation: Art 23,Recital 11,Recital 27,Art 28,Art 29,Recital 13,Recital 8,Article 47,Article 6,Article 13
Netherlands - Council of State, 4 July 2011, 201103855/1/V2

Partly as a result of his detention, the foreigner's financial resources are limited. The obligation to pay €227.00 in court fees for the processing of an appeal therefore constitutes a major breach of the right to access to justice guaranteed under Article 47 of the Charter of Fundamental Rights of the European Union, amongst other provisions. The appeal should therefore have been examined on its merits despite the court fees not being paid.

Date of decision: 04-07-2011
Relevant International and European Legislation: Article 47
Slovenia - The Administrative Court of Republic of Slovenia, 21 April 2011, Judgment I U 677/2011
Country of applicant: Eritrea

A decision terminating the procedure is unlawful and it is not in the function of providing access to the asylum procedures and the protection of the principle of non-refoulement, if the Asylum authority immediately and automatically as soon as the applicant failed to appear for the personal interview, even though he was regularly summoned and informed of the consequences if he does not appear, issued a decision to close the case, without firstly carrying out reasonable activities within the reception centre in order to establish why the applicant did not attend the interview.

In the event that a national legal norm is not in compliance with EU law, the court does not suspend the procedure for assessment of constitutionality of the disputed provision, but ignores the disputed legal provision and directly uses a clear and unconditional provision of secondary EU law with a direct effect. The obligation to ignore the national norm in such cases also applies to administrative authorities.

Date of decision: 21-04-2011
Relevant International and European Legislation: EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005,Art 32,Art 20,European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 18,Article 47,Article 52
Austria - Constitutional Court, 9 October 2010, U1046/10
Country of applicant: Nigeria

The withdrawal of practical protection against deportation for subsequent applications is lawful and does not represent an infringement of the right to an effective remedy (Art 13 ECHR), if the legality of the withdrawal is examined by the Asylum Court.

Date of decision: 09-10-2010
Relevant International and European Legislation: Art 39,Art 21,Art 23.4 (h),Art 32,Art 7,Art 6,Art 13,Article 47,Article 2,Article 3,Article 8,Article 13
Austria- Constitutional Court, 02 October 2010, U3078/09
Country of applicant: Russia

The Applicant submitted applications for the assignment of a legal adviser and legal aid at the same time as his appeal. The Asylum Court rejected the appeal and the applications for the assignment of a legal adviser and legal aid as inadmissible. The Constitutional Court of Austria revoked this finding with reference to Art 15 Procedures Directive: the Asylum Court should not have been permitted to reject the applications for the assignment of a legal adviser and legal aid, but should have pronounced a judgment on the merits by means of a separate decision that could be challenged with a legal remedy.

Date of decision: 02-10-2010
Relevant International and European Legislation: Art 39,Art 15,Article 47,Article 13,Article 3
UK - Court of Appeal, 25 February 2010, MK (Iran), R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 115
Country of applicant: Iran

No liability in damages in EU Law under Art 16(1)(b) of the Dublin Regulation arose from the failure to promptly examine an application for asylum where the United Kingdom accepted responsibility for the claim. The obligation in Art 13 of the Qualification Directive to grant refugee status to those entitled to it could not be considered a “civil right” protected by Art 6 of the ECHR in the absence of caselaw from the Strasbourg Court expressly recognising this.

Date of decision: 25-02-2010
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005,Art 13,Art 6,Art 23,Art 6.2,EN - Charter of Fundamental Rights of the European Union,Article 47,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 10,Article 16,1.,1. (b),EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 6
Austria - Constitutional Court, 22 September 2008, B753/08
Country of applicant: Armenia

Failure to receive basic services does not represent a reduction within the meaning of Art 16 Reception Conditions Directive. The Reception Conditions Directive does not standardise decision deadlines with regard to applications for the granting of basic services.

Date of decision: 22-09-2008
Relevant International and European Legislation: Article 47,Article 7,Article 13,Article 16,Article 17,Article 3,Article 13