Case summaries
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.
Prior to the ECtHR’s decision in MSS v Greece and Belgium, the Austrian Asylum authorities generally only used the sovereignty clause in relation to “Dublin cases” concerning Greece and vulnerable persons. The Constitutional Court refused the appeal on the basis that the applicant did not fall within a vulnerable group and because the Asylum Court’s decision was taken prior to MSS v Greece and Belgium.
During the refugee status proceedings, the administrative authorities should clarify on what grounds a foreign husband has received protection in another country. These circumstances should be assessed consistently in two countries.
There are no objective reasons why the respective positions of two individuals should be viewed differently merely because they have applied for refugee status in two different democratic countries that respect human rights.
The Administrative Court considered the removal of a Sri Lankan from the UK to Cyprus under the Dublin Regulation. The applicant had been recognised under UNHCR’s mandate as being a refugee in Malaysia but had subsequently travelled via Thailand, Syria and Cyprus to the UK. The Court found that there was no legitimate expectation under the UK’s Mandate Refugee policy to consider his claim in the UK. Further, applying the principles in MSS v Belgium and Greece and KRS v UK, it found that the evidence was insufficient to establish that he faced a risk of onward refoulement from Cyprus to Sri Lanka or that detention conditions or living conditions in Cyprus should prevent his removal.
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.
Inadequate care and unlawful detention of an unaccompanied minor seeking asylum: the case concerned the conditions in which a minor from Afghanistan, who had entered Greece illegally, was held in the Pagani adult detention centre on the island of Lesbos.
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.
A failure to apply the Sovereignty Clause in Article 3.2 of Regulation (EC) 343/03 is unlawful when the applicant is in a seriously compromised state of health.
The Constitutional Court did not unreservedly uphold the judgment of the Supreme Court. The Appellant in the case sought protection of his rights under Article 3 of the ECHR (and fundamental rights under Article 16(2) of the Constitution), which, in comparison with the other human rights and fundamental freedoms defined in the Convention, is characterised by an absolute and collective guarantee. In view of this, the Constitutional Court found that the standards of protection arising from Article 3 of the Convention (and Article 16(2) of the Constitution) should have been applied in the proceedings, even if such an obligation is not explicitly set out in the legislation, because these secure a greater range of constitutional rights and freedoms within the meaning of Article 154c(1) of the Constitution, and therefore take precedence over the law.
The Council of State addressed a request for a preliminary ruling to the CJEU regarding the application of the Reception Conditions Directive to asylum applicants to whom the Dublin II Regulation applies.