Case summaries

Following on from a request by several French NGOs to annul Decree No. 2017-430 of 29 March 2017 containing various provisions relating to the allowance for asylum seekers, the French Council of State annuls Article 6(2) of the Decree since it does not set in the Code on the entry and residence of aliens and the right of asylum (CESDA) an additional daily amount sufficient to enable adult asylum seekers who have accepted an offer of care, but to whom no accommodation place can be offered, to have accommodation on the private rental market.

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. 

The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.

A grave psychological disease (post-traumatic stress disorder – PTSd) is a reason to grant interim legal protection against deportation, if the applicant is in a state of self-endangerment or potentially suicidal in case of a deportation.

Judicial review to challenge the failure/refusal of the Secretary of State for the Home Department (“SoS”) to determine the application of the applicant’s spouse and two youngest children for family reunification in the UK on the following grounds: a failure to apply the SoS published policy; irrationality; breach of all the family members’ rights under Art. 8 ECHR; and (regarding the two children in the UK), breach of the duties owed under s.55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).

The Upper Tribunal found that:

1) the Home Office family reunification policy embraces a series of flexible possibilities for proof of identity;

2) the reunion applications were not examined and determined which involves a public law misdemeanour within the applicant’s grounds for challenge; and

3) in any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.

It was unlawful to detain an unaccompanied asylum seeking child, even in the reasonable belief that he was an adult.

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.

Where the ECtHR has, under Article 39 of the ECHR, granted interim measures prohibiting the Government from deporting the Applicant, this does not impact the ability of national courts to rule on the Applicant’s claim to asylum. The interim measures are binding on national authorities only.

Analysing the legality of the refusal to grant child benefit payments to parents who are not habitually resident within the State for the benefit of their children.

The Court of Appeal concluded that to send a refugee who has a residence permit in Italy and an asylum seeker back to the country would not violate Article 3 ECHR.

The court further constrained the decision in Tarakhel to families with minor children.