Case summaries

Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.

In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of  serious harm.

The absence of food provision raised an issue of Article 3 in respect of the first applicant, given his state of total dependency on the Hungarian government during his stay at the Röszke transit zone. The physical conditions of the container in which the family stayed in, the unsuitable facilities for children, irregularities in the provision of medical services, and the prolonged stay in the area amounted to a violation of Article 3 in respect of the applicant mother and the children.

The family’s stay at the Röszke transit zone amounted to deprivation of liberty due to, inter alia, the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of the applicants’ stay and the conditions in the transit zone. Their deprivation of liberty was unlawful under Article 5 (1), as there was no strictly defined statutory basis for the applicants’ detention and no formal decision complete with reasons for detention had been issued by the Hungarian authorities.

Article 5 (4) was also violated because he applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court.

When analysing if protection from UNRWA has ceased (Article 12(1)(a) Directive 2011/95), account must be taken of the possibility for the individual to concretely access effective protection in any of the other fields within UNRWA area of operations.

Assistance from the Agency must be considered as maintained when an individual has left UNRWA area of operations from a field where he couldn’t obtain effective protection, if the person had previously voluntarily left a field where he could access UNRWA’s assistance, even though he could reasonably foresee, according to the information available for him at the moment of departure, that he wouldn’t be able to receive effective protection from the Agency in the field he was travelling to, or return to the field of origin in the short term.

The reception conditions for beneficiaries of international protection in Bulgaria are such that they may face severe material deprivation due to “indifference” on the part of the authorities (cfr. CJEU, Ibrahim), potentially amounting to a violation of Article 3 ECHR / Article 4 CFREU.

When the State Secretary decides that a request for international protection is not admissible, because the applicants have refugee status in Bulgaria, it is not sufficient for him to refer to the principle of mutual trust between EU Member States and to the Council of State’s jurisprudence, but he is obliged to examine the applicant’ s individual circumstances and to obtain specific information and guarantees from the Bulgarian authorities.

The CJEU found that the judge assigned to rule upon the applicant’s detention should have transmitted his request for international protection to the competent authority so it could be registered, and the applicant could enjoy his rights provided by Directive 2013/33. It also found that he should not have been detained since he was protected by his applicant for international protection’s status under Directives 2013/33 and 2013/32.

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 application of provisions on preclusion must always be decided without discretionary error. If the lower court does not make any discretionary considerations at all for its decision to apply a provision on preclusion when rejecting evidence due to a missed time-limit, it infringes the petitioner’s right to be heard under Article 78(2) of the Saxon Constitution (SächsVerf).

The Council of State applies the reasoning of ECtHR and CJEU jurisprudence to the reception conditions in Hungary to conclude that there may be a risk of ill-treatment upon return (Article 3 ECHR / Article 4 CFREU infringement) when a particularly vulnerable person who is fully dependent on state support will be confronted with "official indifference in a situation of serious deprivation or want incompatible with human dignity” upon return to Hungary.