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CJEU – Joined Cases C-331/16 K. and C-366/16 H.F., 2 May 2018
Country of applicant: Afghanistan, Bosnia and Herzegovina, Croatia

The fact that a person has been the subject, in the past, of a decision excluding him from refugee status cannot automatically permit the finding that the mere presence of that person in the territory of the host Member State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. A case-by-case assessment is necessary before a measure based on grounds of public policy or public security is adopted. This assessment includes weighing the threat against the protection of the rights of EU citizens and their family members.

Similarly, in order to adopt an expulsion decision with due regard to the principle of proportionality, account must be taken of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.

Date of decision: 02-05-2018
Relevant International and European Legislation: Art 1F,Article 7,Article 8,Article 12
ECtHR - Hoti v. Croatia (no. 63311/14)
Country of applicant: Kosovo

The restriction of the right to reside in a country may entail a violation of Article 8 ECHR, when creating disproportionate effects on the individuals’ private life. States should provide effective and accessible means to protect the right to respect for private and family life.  

 

Date of decision: 26-04-2018
Relevant International and European Legislation: Article 8,Article 14,Article 35,Article 36,Article 37,Article 41
CJEU – C-353/16, MP v Secretary of State for the Home Department
Country of applicant: Sri Lanka

The fact that a person cannot be repatriated under Article 3 of the ECHR does not imply that that person should be granted a leave to reside in the host country by way of subsidiary protection under Directive 2004/83. The person concerned is eligible for subsidiary protection only if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate health care.

Date of decision: 24-04-2018
Relevant International and European Legislation: Art 2 (e),Art 2,Art 18,Art 15,Art 4,Art 6,Art 4.4,Recital 6,Recital 25,Article 5,Article 3,Recital (12),Recital (34),Article 2,Article 4,Article 6,Article 15,Article 16,Article 18,Art. 3
Germany - Federal Administrative Court, Decision 1 C 29/17, 19 April 2018
Country of applicant: Eritrea

§ 104 para. 13 S. 1 of AufenthG (Residence Law) impedes the claim of a person with subsidiary protection for the assessment of a case of non-refoulment referring to the situation in the state of origin according to § 60 Abs. 5 AufenthG and Art. 3 ECHR in order to enable family reunion due to the lack of a defensible interest. 

Date of decision: 19-04-2018
Relevant International and European Legislation: Article 3,Article 3,Article 4,Article 9,Article 10
UK - HA, AA and NA v Secretary of State for the Home Department, JR/10195/2017, 19 April 2018
Country of applicant: United Kingdom

The UK Secretary of State for the Home Department’s (SSHD) refusal to accede to a take charge request of a stateless wife and her child in Greece wishing to reunite with their British husband/father in the UK is a breach of Article 7 Charter/8 ECHR (and Article 6(1) of the HRA 1998) on the basis that the SSHD’s decisions were disproportionate and not justified. Notwithstanding that the husband/father is a British citizen, the Dublin Regulation applies, notably Articles 9 and 17(2). In respect of Article 9 Dublin Regulation III, it can be relied upon even where an individual in receipt of international protection subsequently naturalises as a British citizen. 

 

Date of decision: 19-04-2018
Relevant International and European Legislation: European Union Law,Council of Europe Instruments,EN - Charter of Fundamental Rights of the European Union,Article 7,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 8,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 9,Article 17,Article 27
Italy - Tribunal of Ragusa, 16 April 2018, RG n. 1182/2018
Country of applicant: Unknown

The rescuing actor is not only responsible for the search and rescue operations but should also consider the safety of disembarkation points in line with the principle of non-refoulement. The Open Arms ship conducted a reasonable assessment of the situation during the rescue operation, given that Libya could not be considered a country where the rescued migrants could be safely returned and Italy had already communicated an available place of safety.

it should be assessed whether the migrants – if rescued by the Libyan authorities - would have been taken back to a country where there are ongoing severe violations of human rights. In the case at issue, Libya has to be considered such a country.  the rescuing actor is not only responsible for the SAR operations but also for the designation of a POS (place of safety) for the migrants to be disembarked at. the principle of non-refoulement had to be applied. the decision to communicate with the Italian authorities, which were the first interlocutor with the Open Arms during the entire operation, including during the disembarking phase, is considered reasonable.

Date of decision: 16-04-2018
Relevant International and European Legislation: Art 33,Article 19,Article 3
ECtHR - Bistieva and Others v. Poland, Application No. 75157/14, Judgement of 10 April 2018
Country of applicant: Russia
Keywords: Detention

The ECtHR held that the detention for almost six months of a Russian national and her three children in a detention centre in Poland amounted to a violation of Article 8, as even in the light of the risk that the family might abscond, the authorities failed to provide sufficient reasons to justify the detention for such a length of time.

Date of decision: 10-04-2018
Relevant International and European Legislation: Council of Europe Instruments,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 5,Article 8,Article 41
ECtHR Khaksar v. the United Kingdom (no. 2654/18)
Country of applicant: Afghanistan

The exhaustion of domestic remedies is a prerequisite for the admissibility of applications lodged with the ECtHR under Article 35 ECHR. Removal of individuals suffering from severe medical problems may not be considered inhumane in the meaning of Article 3 ECHR, when suitable treatment exists in the country of origin.  

 

Date of decision: 03-04-2018
Relevant International and European Legislation: Art 1A (2),Article 14,Article 3,Article 8,Article 35,Article 2,Article 6,Article 9,Article 10
Austria – Higher Administrative Court, March 21st 2018, Ra 2017/18/0474
Country of applicant: Afghanistan

The judicial examination of whether subsidiary protection shall be approved requires a thorough assessment of the individual case. This applies in particular for especially vulnerable persons.

Date of decision: 21-03-2018
Relevant International and European Legislation: Article 2,Article 3,Article 21
ECtHR – A.E.A. v Greece, Application no. 39034/12, 15 March 2018
Country of applicant: Sudan

The possibility to lodge an asylum application in practice is a prerequisite for the effective protection of those in need of international protection. If access to the asylum procedure is not guaranteed by the national authorities, asylum applicants cannot benefit from the guarantees afforded to those under the asylum procedure, leaving them subject to detention at any time. The length of time in which it took for the applicant to lodge his asylum application violated his rights under Article 13 read in conjunction with Article 3 ECHR.

Date of decision: 15-03-2018
Relevant International and European Legislation: EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005,Art 6,European Union Law,Council of Europe Instruments,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 3,Article 13,Article 35,Article 41