Case summaries

A lack of attention paid to the vulnerability of the applicants as asylum seekers and children and their subsequent exposure to conditions of extreme poverty outside the State reception system has led to a violation of Article 3 of the Convention.

The procedure of requesting the suspensive effect of a decision rejecting an asylum application and ordering the transfer of an applicant to another Member State does not amount to an effective remedy under the Convention. 

The case concerns a removal from the United Kingdom to Sweden under the Dublin II Regulation. In the present case the court considered compatibility of Schedule 3 paragraph 3(2) of the Asylum and Immigration Act with the EU Charter of Fundamental Rights and whether the presumption that Sweden would comply with its international legal obligations was rebutted. 

The presumption that Italy remains in compliance with its EU and International Law obligations related to the reception and integration of asylum seekers and Beneficiaries of International Protection has not been rebutted. Asylum seekers and BIPs suffering from severe psychological trauma can be returned to Italy with no real risk of breaching article 3 ECHR, or 4 CFREU, since the Country's reception capacities have not been exceeded, while effective medical treatment is available under the same terms as to Italian nationals.

The Dublin transfer of the applicant to Hungary will not violate Article 3 of the Convention. 

It is the Applicant's age on the date of the asylum application rather than the date of the transfer decision that forms the basis for the assessment of whether or not the Dublin Regulation applies.

A transfer in accordance with the Dublin Regulation does not require the Swedish Migration Board to investigate ex officio whether there are deficiencies in the asylum system in Italy. The transfer does, however, breach the right to a family life, in accordance with Article 8 of the European Convention on Human Rights.

It is not the case that in autumn 2008 the Austrian authorities ought to have known that serious deficiencies in the Greek asylum system risked a violation of the Applicant’s Article 3 rights if transferred to Greece under the Dublin procedure.

The rules on safe third countries, according to which applications for international protection in the event of a threatened violation of Art 8 ECHR must not be refused on the basis of formal safety in another country, is to be applied similarly to the Dublin II Regulation. If the Applicant already has subsidiary protection in one Member State, in accordance with the Dublin II Regulation his application in a different State in which his son, who is a minor and entitled to asylum, is living, (in addition to the Applicant’s pregnant wife) must not be refused.  On the contrary, this State must make use of the right to assume responsibility for the examination.

In this case there was a serious risk that the Applicants’ asylum claims, which in principle should have been readmitted in Hungary in accordance with the Dublin II Regulation, would not be dealt with by the Hungarian authorities in accordance with all the guarantees required by the respect for the right to asylum. The French authorities therefore needed to grant them a temporary right of residence for asylum-related reasons.

The risk of arranged marriage is widespread in Afghanistan, particularly for underage girls, which means that it may constitute grounds for refugee status for women.  
In the examination of Article 8 of Directive 2004/83/EC, it is important to take into account the fact that family members may only return together with their children and spouses on the grounds of the protection of marriage and family.