Case summaries

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

Unlawful detention of an Algerian citizen in Malta for more than 18 months.

The Applicant submitted applications for the assignment of a legal adviser and legal aid at the same time as his appeal. The Asylum Court rejected the appeal and the applications for the assignment of a legal adviser and legal aid as inadmissible. The Constitutional Court of Austria revoked this finding with reference to Art 15 Procedures Directive: the Asylum Court should not have been permitted to reject the applications for the assignment of a legal adviser and legal aid, but should have pronounced a judgment on the merits by means of a separate decision that could be challenged with a legal remedy.

This case concerns the criteria for determining a serious individual threat and the necessary level of indiscriminate violence in an internal armed conflict.In order for Art 15 (c) of the Qualification Directive to apply, it is necessary to determine the level of indiscriminate violence in the territory of an internal armed conflict. When determining the necessary level of indiscriminate violence, not only acts which contravene international law, but any acts of violence which put life and limb of civilians at risk, have to be taken into account. In the context of Art 4.4 of the Qualification Directive, an internal nexus must exist between the serious harm (or threats thereof) suffered in the past, and the risk of future harm.

When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.

When a decision on detention is being made it is necessary to consider if the person is a refugee (asylum seeker) and subsequently if expulsion is feasible, and therefore the only permissible purpose of detention.

A judge considering an appeal against removal on Art 8 of the European Convention on Human Rights (ECHR) grounds had a duty to examine reception facilities in a child’s country of origin.

This case concerned the detention of children. It was held that the policy which permitted the detention of children in a family for a limited time (about 14 days) was lawful, longer detention of children was found to be unreasonable and therefore unlawful. The State also breached Art 8 of the European Convention on Human Rights of a detained child by not being proactive in assessing and preventing forseeable risk to his health. 

The European Court of Human Rights found that there had been a violation of Article 5(1) ECHR through the unlawful detention of two Libyan nationals by the Polish authorities after the expiration of an expulsion order due to be executed within 90 days.