Case summaries

Article 4 ECHR requires that victims of trafficking are promptly identified as soon as there is credible suspicion of trafficking-related circumstances, regardless of whether the victims were able to identify and mention their experience.

To the extent that is possible, potential victims of trafficking can only be prosecuted following an assessment of whether they have been trafficked. Prosecutorial service should be aware of protocols around trafficking cases.

The lack of an assessment of whether the applicants had been trafficked prevented them from obtaining evidence that were fundamentally related to their defence in violation of their right to a fair trial under Article 6. The domestic judicial procedure was also contrary to Article 6 insofar as the applicants’ subsequent claims regarding their trafficking were not adequately assessed.

Not all cases with an international element can establish jurisdiction under the Convention; an assessment of exceptional circumstances on the basis of the specific facts of each case is required.

The applicants do not have any connecting links with Belgium and their sole presence in the premises of the Belgian Embassy in Lebanon cannot establish jurisdiction, as they were never under the de facto control of Belgian diplomatic or consular agents. Jurisdiction under Article 1 ECHR cannot be established solely on the basis of an administrative procedure initiated by private individuals outside the territory of the chosen state, without them having any connection with that State, nor any treaty obligation compelling them to choose that state.

The Foreigners and Borders Service (SEF) appealed against the judgment of the Administrative Court of Sintra, which had upheld the application for annulment of the order of the National Director of SEF - holding that the application for asylum made by the defendant was inadmissible and held that Italy was the State responsible for taking back the applicant - and had ordered SEF to admit, process and assess the applicant's claim, with a final decision.

The Central Administrative Court of the South dismissed the appeal, confirming the contested decision on the ground of a real and proven risk of the applicant suffering cruel, degrading or inhuman treatment.

According to the new 10 September 2018 French Law on Controlled Migration, there will be no criminal proceedings against individuals who have helped in the movement and illegal residence of undocumented migrants, when the aid consisted in providing legal, linguistic or social advice or assistance, or any other aid provided for an exclusively humanitarian purpose.

Criminal immunity is thus defined in a much less restrictive manner, and shall apply to acts committed before the entry into force of the new law.

In the lack of audiovisual recording of the interview, the Judge must set the appearance hearing, otherwise being the decree issued null and void for the breach of the adversarial principle.

If an application for protection has been heard at first instance and the applicant there had the opportunity of a full examination including a personal interview and was given a transcript or report of the interview; and if it was there determined that the application is manifestly unfounded; then EU asylum law in particular Directive 2013/32/EU allows the national court or tribunal to dismiss an appeal without allowing the applicant  a further opportunity to be heard.

However, a hearing may be conducted if the court hearing the appeal considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the Directive.

The imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.

In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.

Lack of prompt investigation of ill-treatment complaints may amount to a procedural violation of Article 3 ECHR. Detention conditions should follow certain standards and individuals should be kept in suitable establishments with enough allocated space.

Where the ECtHR has, under Article 39 of the ECHR, granted interim measures prohibiting the Government from deporting the Applicant, this does not impact the ability of national courts to rule on the Applicant’s claim to asylum. The interim measures are binding on national authorities only.

This case examines whether, for a subsequent application, internal review followed by Judicial Review is an effective remedy, as provided by Article 39 of the Council Directive 2005/85/EC (“the Asylum Procedures Directive”).