Case summaries
This case concerns the State’s obligation to attempt to trace the family members of unaccompanied minor asylum seekers.
When reaching a decision, the Defendant should have protected the best interest of the child. Taking into account the fact that the Applicant is a minor and providing legal representation for a minor applicant, are necessary elements in the process of demonstrating and establishing the facts. The principle of protecting the best interest of the child has to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of evidence (in relation to subsidiary protection).
The Defendant should already have started searching for parents during the procedure for international protection and not only once the procedure for removing the child from the state has begun.
Threats and violence against a person’s family members can be considered as acts of persecution where that person is connected to the facts which previously led to the violence..
The Plaintiff needs to state all circumstances known to him in relation to his persecution; however he does not need to establish a material and legal connection between the persecution and the reasons for persecution.
The fact that somebody is a child in Afghanistan can mean that he belongs to particular social group.
The Applicant’s objective fear was not considered well-founded as persecution was not considered reasonably likely. It was held that there was a reasonable likelihood that, should he return, the Applicant would be forced to live as an internally displaced person in degrading conditions because he lacked the family network that would be required in order to reintegrate him into his homeland socially and financially. Exposure to extreme living conditions constitutes degrading treatment and deporting a person to a country where he would be subject to such conditions violates Article 3 of the ECHR. Subsidiary protection status was therefore granted.
The Asylum Court rejected an appeal against the decision to expel the applicant, who has a medical condition, and her daughter to Italy. The situation in Italy was assumed to be in accordance with the Reception Conditions Directive and there was, therefore, no real risk of a violation of Art 3 ECHR. There was no violation of Art 8 ECHR as the applicant’s son had been living in Austria for 10 years, which meant there was no family life worth protecting.
This was an appeal against the decision that Poland was responsible for the asylum application of a three-month-old boy with a serious medical condition. The Austrian Federal Asylum Office did not consider the applicant’s medical condition appropriately and therefore risked violating Art 3 ECHR.
This case concerned the concept of ‘safe country’ within the Dublin system and respect for fundamental rights of asylum seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible Member State then subject to the sovereignty clause the State can check if another Member State is responsible by examining further criteria under the Regulation. This should not take an unreasonable amount of time and if necessary then the Member State concerned must examine the asylum application.
The Asylum Court allowed an appeal against the decision to transfer the applicants, a family with both physical and psychological medical conditions, to Italy. Given the applicants’ exceptional circumstances and the problems Italy has with capacity, the lack of reliable assurances from the Italian authorities in relation to medical treatment and accommodation gave rise to a risk of a violation of Art 3 ECHR.
The asylum applicant who, in the case of a supervised departure, does not appear at the boarding of his/her flight where his/her pre-transportation to the airport was not ensured, cannot be considered as having absconded.
Right to remain arises the moment an alien indicates he would like to be granted asylum. This means that an alien, from that time onwards, cannot be refused access to the territory; he may be refused only 'further access', in other words 'actual further entry' to the territory.
Restriction of movement due to the lack of official identification papers can occur only when the Applicant raises sufficient doubt as regards the credibility of his declared identity, at which the actual circumstances of the case at hand need to be taken into account.
The restriction of movement due to the presence of the Applicant’s fingerprints in the EURODAC base is permissible only if the actual circumstances of the case at hand indicate that the Applicant might flee.