Case summaries

The decision of the asylum authority was annulled on the basis that there was insufficient evidence that an internal protection alternative existed. 

Subsidiary protection pursuant to Art. 14a(2)(b) of the Act on Asylum (serious harm consisting of inhuman or degrading treatment) may also be granted in so-called humanitarian cases. This goes beyond the scope of Article 15(b) of the Qualification Directive; however, it is compatible with the directive. In order to grant subsidiary protection in so-called humanitarian cases, the factual circumstances need to reach the standard set out in the judgment of the ECtHR, D. v. the United Kingdom.

The Office of Immigration and Nationality (OIN) found the applicant not credible and therefore did not assess the risk of serious harm. Instead the OIN granted protection against refoulement. The Metropolitan Court ruled that the OIN was obliged to assess conditions for subsidiary protection and serious harm even if the applicant was not found credible.

The applicants, who had been recognised as refugees by UNHCR, faced risk of ill-treatment contrary to Article 3 upon Turkey’s proposed  deportation of them to either Iran or Iraq. They had no effective opportunity to make an asylum claim or challenge their deportation. Further their detention had no legal justification and they had been unable to challenge its lawfulness. The Court found violations of Article 3, 13, 5(1), 5(2) and 5(4). 

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.