Case summaries
To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR. If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.
States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court.
The Court decides that the maximum period of detention for the purpose of removal of a person on the grounds of public policy or public security under Belgian law, according to which Union citizens and their family members are treated in the same way as third-country nationals subject to a return procedure, exceeds the principle of proportionality and thus does not comply with EU law.
When a national authority assesses the likely persecution of an applicant for religious purposes in case of return to his/her country of origin, the national authority must evaluate, inter allia, the way the applicant will live his/her faith in his/her country of origin. The Court found that because the applicant is of Hazara ethnic origin and he converted to Christianism in Switzerland, he might face persecution in violation of art. 3 ECHR in case of return to Afghanistan. The TAF did not assess with enough seriousness the consequences of the applicant conversion ex nunc.
A medical examination to assess vulnerability was requested by an applicant in administrative detention. This demand was not examined by the doctor in charge in the detention facility. Therefore, the court of appeal refused an extension of the applicant’s administration detention and ordered their release.
The Respondent erred in detaining the Applicant under § 88a (1)(a) point 1 of Act No 404/2011 Coll. on the residence of aliens and amending certain other Acts in proceedings relating to administrative expulsion to the Ukraine, despite being aware of the Applicant’s intention to apply for asylum. The Respondent also incorrectly assessed whether Ukraine is a safe third country as he failed to take into account recent information on the current situation in Ukraine. Moreover, in assessing the risk of absconding, the Respondent asked improper questions. As such the Respondent's conduct violates principles of good governance.
The case concerned complaints under Article 5 § 1 by asylum
seekers staying at the Debrecen Reception Centre for Refugees (Hungary) about the unlawfulness of their detention – without effective judicial review – pending the outcome of their asylum claims.
The case concerns an asylum seeker’s complaint under Article 5(1) about the unlawfulness of his detention without effective judicial review, pending the outcome of his asylum claim.
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.