Case summaries

Given that the Secretary of State used the same materials in the first and in the review decisions, the High Court found that the Secretary of State did not comply with the standard of review in re-evaluating the case at hand.

In this case the Upper Tribunal provided that the Refugee Convention doesn’t offer protection from social conservatism and that there is no protected right to enjoy a socially liberal lifestyle. However, the Convention may be considered to apply where  ‘westernisation’ reflects a protected characteristic such as political opinion or religious belief, or if there is a real risk that the individual in question would be unable to mask his westernisation and persecutors would impute such protected characteristics to him. 

Even in the absence of a formal complaint, the repeated notifications of trafficking elements to authorities and broader awareness of migrant worker abuse reported in international resources (ECRI, GRETA reports) triggered a duty to investigate. However, the Government failed to show any effective investigation took place: no attempts were made to identify or question victims or alleged perpetrators, nor were legal-assistance mechanisms used to gather evidence from Bosnia and Herzegovina.

The Court unanimously found a violation of Article 4 § 2 under its procedural limb.

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 current case concerns the expulsion of Mr. Arif Savran “the applicant” from Denmark to his country of origin, Turkey in 2015 because of his criminal convictions in Denmark. The applicant argued that his expulsion to Turkey had been in violation of Article 3 and Article 8 of the European Convention on Human Rights because he was suffering paranoid schizophrenia and that he was a “settled migrant”.

The Court found that expulsion of the applicant to Turkey did not violate Article 3 under the Paposhvili threshold test, because the evidence was not “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk… resulting intense suffering or to a significant reduction in life expectancy”.  Also, there was no evidence to show that applicant was causing harm to himself.

In relation to the violation of Article 8, the Court found that Danish authorities failed to consider the mental conditions of the applicant and the applicant expulsion to Turkey violated his “private life” under the Article 8 of the Convention.

The Court decides that the Bosnian administrative authorities unlawfully disregarded the legal provisions pursuant to which the applicant was entitled to other, similar benefits, despite the fact that she specifically invoked those provisions in her appeal. The Sarajevo Cantonal Court thus did not give the applicant’s case a fair hearing. Moreover, the applicant’s case was not remedied by the Constitutional Court.

The Court decides that the proceedings were excessive and failed to meet the ‘reasonable time’ requirement; the Bosnian Government did not put forward any fact or argument capable of justifying the length of the proceedings.

The expulsion of the applicant to Somalia was in violation of Article 8 of the Convention, because the offences committed by the applicant did not posed a threat to public order and he had not previously been warned of expulsion or had a conditional expulsion order imposed. Furthermore, the applicant also had very strong ties to Denmark and virtually no ties with Somalia. Therefore, the expulsion of Mr. Abdi, combined with a life-long ban on returning, was disproportionate.

Except for very limited exceptions, the statutory three-year waiting period for family reunification of persons granted ‘temporary protection’ does not allow for an individualised assessment of the interest of family unity in light of the concrete situation of the persons concerned. Eventually the Court finds a violation of Article 8 of the Convention since the measure (whose goal is not otherwise challenged) had a disproportionate impact in the case at hand.

The Court finds that third-country nationals without a valid residence title in a Member State are illegally present in that Member State and thus fall under the scope of the Return Directive, irrespective of the situation or the measures that led to the illegal presence of the person concerned. Against this backdrop, the Court holds that a deportation order cannot uphold an entry and residence ban without there being any return decision for the applicant which is thus incompatible with the Return Directive.

The conditions of detention amounted to a violation of Article 3, in so far as the applicant remained in isolation, in a container with inadequate natural light and ventilation, for a significant amount of time and without any consideration of alternatives. The applicant’s unnecessary placement in a part of the detention facility that was reserved for Covid-19 quarantine also exposed him to health risk.

The applicant’s detention was not lawful under Article 5 (1) ECHR, as it lasted for fourteen months, the authorities were aware that the deportation was not feasible and failed to pursue the matter with diligence. Article 34 was also violated due to irregularities in the manner that legal aid was provided to the applicant and the lack of confidentiality and support during his communication with the Court while he was in detention.