Case summaries

The Helsinki Supreme Administrative Court decided  that Finland cannot return an Iraqi asylum seeker to Sweden, where he/she faces the risk of being sent back to Baghdad and may be subjected to violations of his/her human rights. The  Supreme Administrative Courtdecided that the ruling of the Finnish Immigration Service had to be reversed and the application for asylum had to be substantively examined in Finland. 

A decision to transfer the applicant to Italy, solely based on Italy’s failure to respond to a request to take back the applicant, was insufficient, arbitrary and violated the applicant’s right to equal treatment. The Asylum Court had neither listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible nor addressed the issues concerning the travel route of the applicant and his long stay in Greece.

This was an appeal against the decision to transfer an applicant to Hungary, when that applicant had first entered the EU through Greece. The argument that Greece’s formal responsibility for the applicant was “interrupted” by the applicant leaving the EU for a short term is contrary to Art 16(3) Dublin Regulation and must be dealt with by initiating procedures for a preliminary ruling at the CJEU. A preliminary ruling should also address the systemic failure of the asylum system in Greece, the risk of a violation of Art 3 ECHR and whether this results in a different Member State being responsible for the asylum procedure.

The decision to expel an orphaned minor to Poland when he had a legal guardian in Austria gave rise to a real risk of a violation of Art 8 ECHR. The Asylum Court made its decision without providing clear reasons. The applicant’s family ties in the home country and in Austria must be considered, regardless of the duration of the applicant’s stay in Austria. The sovereignty clause must be applied when there is a real risk of a violation of Art 8 ECHR.

This case concerns the impact of withdrawing for an asylum application has on the application of the Dublin II Regulation and what are State responsibilities in that regard.

The detention of asylum applicants may undermine their ability to claim asylum and that an ‘effective remedy’ requires an appeal with suspensive effect against refoulement in order to prevent irreparable harm, sufficient time to prepare the appeal and effective legal assistance and interpretation.

A Russian Federation citizen arrived in Finland from another EU country (Lithuania) where he/she alleged that he/she had been persecuted and claimed international protection on this basis. The Immigration Service denied the Applicant a residence permit, failed to examine the application for international protection and decided to deport him/her to Lithuania. The Immigration Service considered Lithuania to be a safe third country and the application for international protection was not examined in relation to his/her country of origin.  The Supreme Administrative Court took the view that the issue of international protection could not be dealt with in Lithuania as the grounds for the application were cited as persecution in that same country.  The Administrative Court was ordered  to overturn the Immigration Service’s decision and return the case back for further consideration.

Under Austrian Asylum law, if a minor age cannot be excluded following an age assessment and doubts still exist in favour of the applicant, the authorities have to treat him or her as a minor. In this case, the age of the applicant had not been confirmed as being the age of maturity with absolute certainty and the applicant should therefore have been treated as a minor. The fact that only a copy of the birth certificate was submitted is not a sufficient basis to doubt its authenticity.

An administrative authority seriously and manifestly illegally violated the right to asylum by refusing on principle to register an asylum application on the sole ground that the party concerned would not be accompanied by an interpreter for an additional interview. That situation constituted an emergency situation pursuant to article L. 521-2 of the French Code of Administrative Justice.

This was an appeal against the decision to transfer the applicant to Hungary on the ground that Hungary would transfer the applicant to Serbia, which would amount to indirect refoulement in violation of Article 3 ECHR. The Asylum Court allowed the appeal and held that, although Hungary can be assumed as a safe country, if an applicant gives individual reasons for why Hungary is not safe these must be examined in detail.