Case summaries
Expulsion by France of two nationals of Belarus whose asylum claims had been rejected would amount to a violation of Article 3.
The applicant and her husband were both Ethiopian nationals who had their asylum applications in Switzerland definitively rejected, but were unable to return. The Swiss authorities refused the applicant’s requests to be transferred to her husband’s canton, leading to approximately 5 years separation.
The Court found a violation of their Article 8 right to respect for family life, as the measure had not been necessary in a democratic society.
The applicant and her husband were both Ethiopian nationals who had their asylum applications in Switzerland definitively rejected, but were unable to return. The Swiss authorities refused the applicant’s requests to be transferred to her husband’s canton, leading to approximately 5 years separation.
The Court found a violation of their Article 8 right to respect for family life, as the measure had not been necessary in a democratic society.
In this case, the Austrian Asylum Court held the decision of the Federal Asylum Office not to grant refugee status to the applicant’s child was a violation of Austrian asylum law since the child’s father had been granted refugee status. The Court also held a separation of the newborn child from its mother violates Art 8 ECHR and, therefore, the applicant’s asylum application has to be admitted to the procedure on the merits.
In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.
In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a year, the person can appeal to the Tribunal on the grounds that he or she is a refugee in order to ‘upgrade’ his or her status. The Court held that the general principle of equivalence in EU Law requires that the appeal right against the rejection of the claim cannot be restricted to the grounds that the applicant is a refugee but must also allow the applicant to appeal on the grounds that he is entitled to subsidiary protection.
This case concerned the application of the principle of family unity, where the sponsor had been granted asylum and subsequently acquired the nationality of the country of refuge.
- In principle, a threat of female genital mutilation (FGM) has to be considered as political persecution according to Section 60 (1) Residence Act.
- In Nigeria, FGM is still widespread in all known forms. For the Edo ethnic group, it is usually performed between seven and fourteen days after birth.
- The number of circumcisions performed (among the Edo ethnic group) during puberty has decreased significantly in recent years and circumcisions in adulthood are no longer performed, or they are only carried out in a small number of cases.
In the present case the court found that it was unlikely that the applicant was at risk of FGM considering her age (five years) and the fact that both her parents opposed the practice. Further, the requirements of ‘Prohibition of deportation’ (Section 60 (2) through (7) of the Residence Act) were not established; it was considered unlikely that the applicant would actually return to Nigeria as her mother had residency in Germany.
Refugee protection was not granted, since the applicant, as a member of the particular social group of "Djoula living in the South of Côte d’Ivoire" (Art 10.1(d) Qualification Directive) was not subject to political persecution when he left Côte d’Ivoire in 2001. The court found that group persecution was not established due to the insufficient frequency of acts of persecution against members of this group and therefore in case of return, the applicant would not face such group persecution.
In appealing a decision to transfer the wife and children of an asylum applicant to Poland, the applicants relied on the humanitarian provision in Art 15 Dublin Regulation. They also noted Art 3(2) of the Dublin Regulation states separation of family members should be avoided and that such a separation would violate Art 8 ECHR. The Austrian Asylum Court allowed the appeal on the basis of Austrian asylum law, under which family members of an asylum applicant have the right to receive the same status as the applicant.