Case summaries

Detention of asylum seekers should only be permitted under the conditions prescribed by the law. The detention and deportation orders should always provide sufficient legal justification including the objective facts leading to the administrative authorities’ decision.

The use of forged documents by asylum seekers, when attempting to flee from one country and seek protection under international law in another country, is not criminally liable, when it is the result of a well-founded fear for inhuman or degrading treatment.

NB: the case was referred to the Grand Chamber, which issued a new ruling on 13 February 2020. For the EDAL summary of the final judgment, see here.

The continued and exclusive control of contracting State's authorities over individuals creates, at least, a de facto exercise of jurisdiction for the purposes of Article 1 ECHR. 

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. 

An asylum applicant who was a victim of previous persecution in their country of origin can be granted refugee status under article 1, C 5) of the Geneva Convention. This is because, due to the severity of the treatment applied, the applicant’s fear is exacerbated to such an extent that, even if the persecution has ceased to exist, a return to the country of origin would be unthinkable. 

If an application for protection has been heard at first instance and the applicant there had the opportunity of a full examination including a personal interview and was given a transcript or report of the interview; and if it was there determined that the application is manifestly unfounded; then EU asylum law in particular Directive 2013/32/EU allows the national court or tribunal to dismiss an appeal without allowing the applicant  a further opportunity to be heard.

However, a hearing may be conducted if the court hearing the appeal considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the Directive.

Article 27(1) of the Dublin Regulation is to be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.

The two-month period for submitting a take charge request where there has been a Eurodac hit is not cumulative with the general three-month period for take charge requests.

An application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.

The Tribunal reasserted the decision maker’s duty of confidentiality in considering documents produced in support of a protection claim. Where there is a needed to make an inquiry in the country of origin then written consent must be given by the applicant. Moreover, Article 22 of the Asylum Procedures Directive prohibits direct contact with the alleged actor of persecution. Additionally, the Refugee Convention requires that the authentication of a document is undertaken with a precautionary approach, namely whether an inquiry is necessary or should be framed in a specific manner and whether there is a safer alternative. Ultimately, disclosure of personal information should go no further than is strictly necessary.

The Tribunal found that the respondent was unlikely to have breached confidentiality in her inquiries into the authenticity of the documents produced; and that if she had, the remedy would not be the grant of refugee status; and that the appellant had not established that he had a credible case for asylum on the basis of the documents submitted. Nonetheless the Tribunal highlighted that a failure to comply with the duty of confidentiality might be relevant to the overall assessment of risk on return. 

1. Afghans who have worked for international aid organisations are particularly endangered of becoming victims of political persecution by non-state actors (e.g. Taliban) according to § 3 (1) AsylG in case of a return to Afghanistan.

2. There is no internal protection for these people. They cannot escape the clutches of non-state actors as these groups have a wide (information) network at their disposal and an increased interest in persons who have worked for international aid organisations.