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Spain: National Court. Chamber of Contentious-Administrative Proceedings n. 5177/2017, 5th December 2017, Appeal No. 234/2017
Country of applicant: Gambia
Keywords: Persecution Grounds/Reasons, Personal circumstances of applicant, Well-founded fear, Family unity (right to)

When examining the acceptance of an asylum claim, the authorities have to study whether the testimony of the applicant is based on presumably true facts. Only if it is manifestly false could the admission of this application be denied.

The principle of family unity has to be taken into account regarding the assessment of the circumstances of the applicant, especially since his sister’s application for international protection was accepted.

Date of decision: 05-12-2017
Relevant International and European Legislation: Art 1A (2),Art 1F,Art 33,Article 7,Article 11,Article 23,Article 24,Article 25,Article 26,Article 27,Article 28,Article 29,Article 30,Article 31,Article 32,Article 33,Article 34,Article 35
ECtHR - N.D. and N.T. v. Spain, Application Nos. 8675/15 and 8697/15, 3 October 2017
Country of applicant: Ivory Coast, Mali
Keywords: Effective access to procedures, Legal assistance / Legal representation / Legal aid, Procedural guarantees, Return

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. 

In light of Spain's jurisdiction over N.D. and N.T, who had attempted to cross the fences separating Morocco from Melilla, Spain was bound by the prohibition of collective expulsions under the Convention. A standardised response of removal to the applicants attempted entry to the Spanish territory without any identification procedure or administrative or judicial measure being first taken meant that the Spanish authorities had violated Article 4 Protocol 4 to the Convention. 
 
The collective expulsion of the applicants was clearly linked to their inability to access a national procedure which would satisfy Article 13 requirements.The applicants had, therefore, also been denied an effective and rigorous remedy which would allow them to contest the collective expulsion. 
Date of decision: 03-10-2017
Relevant International and European Legislation: European Union Law,Council of Europe Instruments,EN - Charter of Fundamental Rights of the European Union,Article 18,Article 19,Article 47,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Article 8,Article 9,Article 11,Article 12,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 1,Article 2,Article 8,Article 12,Article 13,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 1,Article 13,Article 41,ECHR (Fourth Protocol),Art 4,Treaty on the Functioning of the European Union 2010/C 83/01,EN - Treaty on European Union,Article 2,Article 6,Article 78
Belgium - Council for Alien Law Litigation, 17 August 2017, n°190 672
Country of applicant: Albania
Keywords: Assessment of facts and circumstances, Actor of persecution or serious harm, Burden of proof, Circumstances ceased to exist, Duty of applicant, Exclusion from protection, Medical Reports/Medico-legal Reports, Non-state actors/agents of persecution, Previous persecution, Personal circumstances of applicant, Well-founded fear, Country of origin, Gender Based Persecution, Obligation to give reasons

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. 

Date of decision: 17-08-2017
Relevant International and European Legislation: Article 2,Article 10,Article 11,Article 1,Article 2,Article 4,Article 7,Article 9,Article 10,Article 11,Article 13,Article 15
Greece - Council of State, 22 March 2011, Application No. 886/2011
Country of applicant: Bangladesh
Keywords: Credibility assessment, Duty of applicant, Persecution Grounds/Reasons, Relevant Documentation, Protection, Well-founded fear, Refugee Status, Religion, Real risk, Obligation to give reasons

A foreigner who wishes to be placed under the special protection of refugee status must show the Administration, with reasonable clarity and in an objectively reasoned way, that there are specific facts which cause him to have a fear of persecution for reasons of race, religion, nationality, social group or political opinion. If such substantive claims have not been submitted, but only general, vague or manifestly unfounded claims; or if specific facts have indeed been cited but these do not establish grounds for refugee status, then there is no obligation to give specific reasons for rejecting the application for asylum. The “Handbook on Procedures and Criteria for Determining Refugee Status” issued by the UN High Commissioner for Refugees is non-binding in nature but contains “best practice” for the relevant authorities when examining asylum applications and, in that way, sets out “soft law”. Granting a residence permit on humanitarian grounds falls within the broad discretionary powers of the relevant authority; but it can, exceptionally, be obligatory if the foreigner would – should he be repatriated to the country of origin – be at risk of torture or other inhuman or degrading treatment or punishment.

Date of decision: 22-03-2011
Relevant International and European Legislation: Art 33.1,Article 10,Article 11,Article 12,Article 3,Article 2,Article 9,Article 10