Case summaries

This was a decision on appeal against detention under Articles 76(3) et seq of Law 3386/2005 and 30(2) of Law 3907/2011. It concerned an act to halt an asylum application, Non-attendance at the personal interview at the primary examination of the application was deemed to be tacit withdrawal of the application to be granted asylum. The Applicant was arrested due to the absence of legal documentation and decisions to detain and return were issued.  Mental illness associated with the return process was considered.

A judicial decision lifted the detention order so as to not worsen the health condition of the Applicant. Imposition of restrictions and a deadline for leaving Greece were discussed.

The case concerns a Syrian Kurd’s detention by Cypriot authorities and his intended deportation to Syria after an early morning police operation on 11 June 2010 removing him and other Kurds from Syria from an encampment outside government buildings in Nicosia in protest against the Cypriot Government’s asylum policy.

The Court found a violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights taken together with Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) due to the lack of an effective remedy with automatic suspensive effect to challenge the applicant’s deportation; a violation of Article 5 §§ 1 and 4 (right to liberty and security) of the Convention due to the unlawfulness of the applicant’s entire period of detention with a view to his deportation without an effective remedy at his disposal to challenge the lawfulness of his detention. 

Whether the detention of an individual under the Returns Directive for the purposes of removal is still lawful if the Applicant subsequently applies for asylum. 

The grounds for extending a deadline for departure can exist either within the country or abroad or grounds which otherwise hinder a departure within the deadline. In addition, problems which typically affect former asylum seekers, namely long absence from the country of origin and circumstances such as disappearance of their social network following an absence of many years, are to be considered as special circumstances which make it necessary to extend the deadline for departure.

Although voluntary departure is an absolute requirement for the extension of the deadline for departure, the intention to submit an application for leave to remain does not in itself represent an obstacle. Rather, a judgment is required in each individual case.

According to section51(1) of the Aliens Act, a foreigner living in Finland without a residence document will be granted a temporary residence document in a situation where he/she cannot be refouled.  In this case, it was considered whether a foreignor should be granted a residence document if he/she could voluntarily go back.

The Charter of Fundamental Rights of the European Union is also applicable to proceedings to issue a return decision and requires a hearing. With regard to an Applicant who is not represented by anyone legally qualified, such an obligation also exists in cases in which an application for an oral hearing was not expressly lodged. This applies in particular when considering questions concerning private and family life in Austria.

The case concerns the unlawfulness of the detention pending expulsion for a total period of more than one year and eight months without effective judicial review of one of the applicants, Mr. Abas Amie (Articles 5 § 1, 5 § 4 of the ECHR); and an unlawful interference with the right to respect for family life, in breach of Article 8 of the ECHR, with respect to the other applicants, his family members.

Failure to integrate into the country, which is typically the case, does not constitute grounds for protection. Behaviour a long time previously in relation to the entry is not significant when assessing security requirements. Aggressive behaviour in the Federal Support Centre does not alone represent a need for security which justifies detention (deportation detention). Despite removal from the Federal Support Centre owing to this behaviour, this must not lead to an asylum seeker losing his entitlement to basic services.

The Council of State found that a decision to extend the detention of a foreigner was a decision which adversely affected the individual. The principle enshrined in EU law of the rights of the defence applies to the preparation for this decision. Under this principle, according to the Council of State, the facts and circumstances forming the basis for the extension decision must be explained expressly and clearly to the foreigner, along with the legal consequences of the decision. Furthermore, a representative must be notified of the intention to issue a decision to extend detention of the foreigner, to enable the representative to support the foreigner in his response to the extension decision.

The case concerns the removal of a Brazilian national residing in French Guiana (a French overseas département-région) and his inability to challenge the measure before its enforcement.