Case summaries

A decision to expel a child with a serious medical condition that may lead to death without treatment, to Poland, when that child has previously been refused medical treatment in Poland, gave rise to a real risk of a violation of Art 3 ECHR. The decision had been taken arbitrarily because the necessary investigations in relation to the child’s medical condition had not been made.

The European Court of Human Rights held that there had been a violation of Article 3 with regards to the applicant’s detention conditions in Soufli and Attiki (Petrou Rali). It further found a violation of Article 5 §§ 1 and 4 due to the unlawful detention of the applicant and the lack of remedies to challenge it.

It is in violation of Art 13 of the ECHR (Right to an Effective Remedy) in conjunction with Art 3 of the ECHR (Prohibition of Torture) that the applicant may not await the court’s decision on his request for a temporary injunction against his expulsion in the Netherlands, even though he has an arguable claim under Art 3 of the ECHR. Further that Art 39 of the Procedures Directive is not correctly implemented in Dutch law.

In this case the Court of Appeal considered the interpretation of Art 15 (c) of the Qualification Directive applying the decision of the CJEU in Elgafaji (C-465/07; 17 February, 2009).

UK domestic legislation that deemed that EU member states were safe third countries for the purposes of removal under the Dublin Regulation was not, as a matter of course, incompatible with Article 3 ECHR and the Human Rights Act 1998. However, if the applicant could show that his or her rights under Article 3 ECHR would be breached by his or her removal to Greece, a declaration of incompatibility between the legislation and the Human Rights Act would be made, although the Court would be prevented from finding that the removal would breach the applicant’s rights.  However, the evidence combined with the ECtHR’s ruling in KRS v. UK was not sufficient to indicate that there was such a risk and, in any event, the applicant could seek the protection of the ECtHR in Greece.

Article 15(c) of the Qualification Directive only offers protection in exceptional circumstances where there is a high level of indiscriminate violence.

The fact that Poland agreed to take charge of the asylum procedure of a whole family is, by itself, not a proper basis for an inadmissibility decision. The hierarchy of the criteria for determining the Member State responsible for the procedure on the merits, set out in Art 5(1) Dublin II Regulation, must be respected. In this case the husband and father of the family had already been admitted to the procedure on the merits and, therefore, Art 8 was applicable prior to Art 14.

When a decision on detention is being made it is necessary to consider if the person is a refugee (asylum seeker) and subsequently if expulsion is feasible, and therefore the only permissible purpose of detention.

The Court examined the issue of when the refusal of the applicant’s State of nationality to provide documents to allow her to be readmitted to that State represents a denial of the applicant’s nationality and, consequently, provides a basis for a claim for asylum. The Court held that the deprivation of nationality can constitute persecution. It further held that concepts of de jure and de facto nationality, applied by the Tribunal in the appeal, were likely to obscure the question of whether the applicant had a well-founded fear of persecution. It held that the correct standard of proof in respect of the issue of re-documentation will usually be the balance of probabilities rather than a reasonable degree of likelihood. It further held that, to prove her case, the applicant was under a duty to take all reasonable steps in good faith to obtain documents from the authorities of her State of nationality.

The applicant lodged an appeal before the High National Court against the decision of the Ministry of Interior to refuse granting refugee status. The refusal was based on the application of an exclusion clause due to the applicant’s alleged membership of a terrorist group and for having committed serious crimes.

It was discussed whether this exclusion clause had been applied lawfully and also if, alternatively, the applicant could be authorised to stay in Spain for humanitarian reasons since, if he was expulsed, there was a risk of suffering inhuman or degrading treatment