Case summaries
With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.
The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.
After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.
European Directive 115/2008 (the ‘Return Directive’) should be applied to the detention of asylum seekers – that is, with all the restrictions on the detention system, which is not to be used automatically but only in cases where there is considered to be a risk of absconding or a threat to society, and with an obligation to state the reasons for the detention – because otherwise there could be an unjustifiable disparity in the treatment of those who are to be returned (and who do not necessarily have to be detained) and asylum seekers who are already destined for return or expulsion (who should always be detained).
In the opinion of the appeal court, the fact that the defendant disregarded the documents submitted by the applicant in support of his request for an application of Article 3(2) of the Dublin Regulation, and omitted to present an argument in the decision as to why it had not upheld the application, fails to satisfy the requirements of the generally accepted legal principles of administrative procedure, because the outcomes of these actions were not assessed and justified in the decision.
This was an appeal against the decision to transfer an asylum applicant to Poland. The Council of State rejected the applicant’s claim that he was not informed about the Dublin procedure in a language intelligible to him, as the applicant had indicated he understood Russian and an interpreter had been provided. Moreover, the circumstances necessary to apply Art 3(2) Dublin Regulation had not been met.
Based on new evidence (suspicion of trafficking) the Administrative Court returned the applicant’s case to the Immigration Service which had previously decided that Italy was responsible for the application according to the Dublin II Regulation.
The Constitutional Court allowed an appeal against a decision to expel a single mother and her three minor children to Greece. It is necessary that Greece ensure appropriate accommodation will be provided for vulnerable persons in each case. The applicants are vulnerable persons and the lack of assurance from Greece, therefore, gave rise to a real risk of a violation of Art 3 ECHR.
The right to family life can outweigh the ‘state responsibility’ criteria in the Dublin II Regulation. The Court held that the application for asylum should be processed in Sweden, in order to secure the right to family and private life (Art 8 of the European Convention on Human Rights), despite the fact that another State was responsible under the Dublin II Regulation.
The French authorities shall use the sovereignty clause in the Dublin Regulation, under the judge’s supervision, when the rules that determine responsibility of a member state for the asylum procedure may infringe on international and national rights guaranteed to refugees and applicants for asylum. In this case a transfer order to Hungary, where the applicant had on two occasions been detained in unsuitable conditions, was held to be an unlawful infringement of the applicant’s right to asylum.
In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.
In appealing a decision to transfer the wife and children of an asylum applicant to Poland, the applicants relied on the humanitarian provision in Art 15 Dublin Regulation. They also noted Art 3(2) of the Dublin Regulation states separation of family members should be avoided and that such a separation would violate Art 8 ECHR. The Austrian Asylum Court allowed the appeal on the basis of Austrian asylum law, under which family members of an asylum applicant have the right to receive the same status as the applicant.