Case summaries

1. A change of the destination country in a return decision by an administrative authority should be regarded as a new return decision requiring an effective remedy in compliance with Article 47 CFREU.

2. The national legislation providing for a safe transit country ground applicable in the present case is contrary to EU law.

3. The obligation imposed on a third-country national to remain permanently in a closed and limited transit zone, within which their movement is limited and monitored, and which the latter cannot legally leave voluntarily, in any direction whatsoever, constitutes a deprivation of liberty, characterised as "detention" within the meaning of the Reception Conditions (RCD) and Returns Directives (RD).

4. Neither the RCD nor Article 43 of the Asylum Procedures Directive authorise detention in transit zones for a period exceeding four weeks.

5. Detention under the RCD and the RD must comply with the relevant guarantees under EU law including being based on a reasoned detention decision; consisting of a measure of last resort, following an individualised assessment of the case, its necessity and proportionality; and effective judicial review should be available. An applicant for international protection cannot be held in detention solely on the ground that they cannot support themselves. Where detention is found to contravene EU law, domestic courts may release the applicant and order the authorities to provide accommodation in line with the RCD provisions. They are empowered to do so, even if they have no clear jurisdiction under national law.

Not all cases with an international element can establish jurisdiction under the Convention; an assessment of exceptional circumstances on the basis of the specific facts of each case is required.

The applicants do not have any connecting links with Belgium and their sole presence in the premises of the Belgian Embassy in Lebanon cannot establish jurisdiction, as they were never under the de facto control of Belgian diplomatic or consular agents. Jurisdiction under Article 1 ECHR cannot be established solely on the basis of an administrative procedure initiated by private individuals outside the territory of the chosen state, without them having any connection with that State, nor any treaty obligation compelling them to choose that state.

The ECJ has to decide on the assessment of the existence of a serious individual threat by reason of mere presence in a certain area. It has to decide whether there is a minimal threshold of civilian fatalities that excludes such risk or if a holistic approach taking into account all circumstances special to the case has to be followed to assess the existence of such threat.

The notification about the intention of withdrawal from the EU by the Member-State responsible for the examination of the application for international protection does not trigger the determining Member-State’s obligation to make use of the discretionary clause of Article 17(1) 604/2013 EU. Similarly, Article 6 (1) cannot be interpreted as imposing an obligation on the Member State that is not responsible to take into account the best interests of the child and to examine the application itself under 17 (1)

The Court annulled the no. 10464/31.05.2017 Decision of the Director of the Asylum Service, on the basis of which, the restriction on the movement of applicants for international protection entering the Greek islands of Lesvos, Rhodes, Samos, Kos, Leros and Chios after the 20th of March 2016, was imposed. Furthermore, the Court ruled that the competent authority may not impose the contentious restriction on movement to applicants for international protection arriving in the Greek islands after the date of the publication of the judgment.

The case concerns the validity of the first subparagraph of Article 8(3)(a) and (b) of the Receptions Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights. 

Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.

If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.

It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.

Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.

Article 3 ECHR is triggered in cases involving the removal of a seriously ill individual where the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.

Access to sufficient and appropriate medical care must be available in reality, not merely in theory and the impact of removal on an applicant must be assessed by considering how an applicant’s condition would evolve after transfer to the receiving State.

The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims.  A further right to appeal remained with the Cypriot Supreme Court.  The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.

The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR.  The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.