Case summaries
Pursuant to Section 60 paragraph 5 of the Residence Act, refugees recognised abroad cannot be deported to the state in which they are recognised if the living conditions expected there contradict Article 3 of the ECHR. This presupposes that the situation in the country of destination reaches the minimum severity required for Article 3 ECHR, but an "extreme danger" within the meaning of the case-law regarding Section 60 paragraph 7 sentence 5 Residence Act is not a prerequisite.
A Syrian citizen who has been recognised as a refugee in Bulgaria cannot be deported to Bulgaria because of the degrading living conditions awaiting him there.
Where a person is registered with UNRWA and then later applies for international protection in a European Union Member State such persons are in principle excluded from refugee status in the European Union unless it becomes evident, on the basis of an individualised assessment of all relevant evidence, that their personal safety is at serious risk and it is impossible for UNRWA to guarantee that the living conditions are compatible with its mission and that due to these circumstances the individual has been forced to leave the UNRWA area of operations.
The Federal Administrative Court has to clarify whether the petition for action directed solely at the obligation to decide on the asylum application is admissible. The question if it is also possible to directly oblige the defendant to grant international protection or to establish prohibitions on deportation by means of an action is not the subject of the decision. As a result, the court comes to the conclusion that there was a delay by the respondent of providing the decision on the asylum application without sufficient reason and that the plaintiff has a need for legal protection for its action for failure to act.
The applicant, an Algerian national convicted in France for terrorism and banned from entering French territory in 2006, was sent back to Algeria in 2014, on the day he was notified of the rejection of his asylum claim and of the issuance of his return order. The Court found that the French authorities violated Article 34 of the Convention by carrying out the applicant’s transfer despite the Court’s interim measure. It also found that France violated Article 3, in the light of the general information regarding the situation of people suspected of international terrorism in Algeria.
The applicant appealed the Migration Court’s decision to dismiss his application for asylum on grounds of the availability of an internal protection alternative in the applicants home country of Afghanistan.
The Migration Court of Appeal granted the appeal as it was held that the question of internal protection can only be assessed after the court has made an individual assessment of the original grounds for protection invoked by the applicant.
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.
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.
§ 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.
An asylum applicant who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must still be regarded as a “minor” for the purposes of that provision.
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.