Case summaries
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.
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 European Court of Human Rights found a violation of Article 5 para 1 (f), 4 and 5 with regards to some of the eleven applicants in this case, who were detained as suspected terrorists by UK authorities.
The applicant was expelled from Russia on the basis of his religious activities and separated from his infant son as a result. While Russia attempted to justify this on the ground of national security, the Court held that sufficient evidence was not provided and that Articles 5, 8, 9 and 38 of the Convention and Article 1 of Protocol No. 7 had been violated.
A judge considering an appeal against removal on Art 8 of the European Convention on Human Rights (ECHR) grounds had a duty to examine reception facilities in a child’s country of origin.
Examining the application as manifestly unfounded requires a three-stage test: (1) whether there is a risk of expulsion abroad or extradition of the person, (2) whether the Applicant could have filed the application sooner, (3) whether it is obvious from the steps taken by the Applicant that they had filed the application with the sole intention of avoiding imminent expulsion or extradition.
Article 9 of the European Convention on Human Rights does not have, for instance, extraterritorial effect in comparison with Articles 3 and 8 of the same Convention. The return of an individual to a country where he is threatened with constraints on his religious freedom, which do not reach the level of interference with his rights pursuant to Article 3 of the Convention, is not in contradiction with the Convention. Such a return cannot even represent prima facie serious harm for the purpose of examining subsidiary protection.
The applicant, a lesbian from Iran, was recognised as a refugee. The court found:
- It is unreasonable for homosexuals to refrain from sexual activities in order to avoid persecution.
Although there is no systematic persecution of homosexuals in Iran, there is a considerable risk of detection and persecution.
The European Court of Human Rights found that the expulsion of a Turkish national from Bulgaria violated his right to respect for private and family life (Article 8) and his right to an effective remedy (Article 13). What is more, it held that the Bulgarian authorities did not abide with the procedural safeguards relating to the expulsion of nationals.
Applying the guidance on assessing internal protection found in AH (Sudan) and Januzi (see separate summaries), it would be unduly harsh for an applicant to have to survive in the area of internal relocation through enforced prostitution even if this was widespread in the country of origin. An applicant’s individual vulnerability should be taken in to account in assessing internal protection.
This case concerned the argument that the decision of the Minister with regard to deciding whether to grant subsidiary protection must involve the same procedure as that which is applied in determining refugee status and that, in reviewing any such decision of the Minister, the courts must apply the same principles as apply to refugee determinations, rather than the principles that apply when reviewing the discretionary grant of humanitarian leave to remain or a decision as to non-refoulement. The Court held that nothing in the Procedures Directive required that the decision making process as to subsidiary protection should be the same as that for the refugee process, however if substantially new material was put forward in a subsidiary protection application it must be given a fair and reasoned consideration. The primary focus for deciding upon an application for subsidiary protection under the Qualifications Directive is on obtaining reliable and up to date country of origin information. It is not necessary for the Minister, in making such a decision, to engage in a dialogue with an applicant.