Case summaries
An applicant that has received protection on behalf of UNRWA is not required to prove a fear of persecution to be recognised as a refugee; the asylum authorities have to examine whether the applicant was actually receiving UNRWA protection and whether that protection has ceased.
An individual examination of the case will reveal whether the cessation of UNRWA protection resulted from objective reasons that the agency could not rectify.
1. A change of the destination country in a return decision by an administrative authority should be regarded as a new return decision requiring an effective remedy in compliance with Article 47 CFREU.
2. The national legislation providing for a safe transit country ground applicable in the present case is contrary to EU law.
3. The obligation imposed on a third-country national to remain permanently in a closed and limited transit zone, within which their movement is limited and monitored, and which the latter cannot legally leave voluntarily, in any direction whatsoever, constitutes a deprivation of liberty, characterised as "detention" within the meaning of the Reception Conditions (RCD) and Returns Directives (RD).
4. Neither the RCD nor Article 43 of the Asylum Procedures Directive authorise detention in transit zones for a period exceeding four weeks.
5. Detention under the RCD and the RD must comply with the relevant guarantees under EU law including being based on a reasoned detention decision; consisting of a measure of last resort, following an individualised assessment of the case, its necessity and proportionality; and effective judicial review should be available. An applicant for international protection cannot be held in detention solely on the ground that they cannot support themselves. Where detention is found to contravene EU law, domestic courts may release the applicant and order the authorities to provide accommodation in line with the RCD provisions. They are empowered to do so, even if they have no clear jurisdiction under national law.
In a case of an asylum application on the grounds of gender based persecution, supported by medical reports, the Belgian Council of State held that it belongs to the asylum authorities to investigate the origin of injuries, whose nature and seriousness imply a presumption of treatment contrary to article 3 ECHR and to assess the risks they reveal.
Without this assessment, the judge cannot legally conclude that the Applicant does not establish that he has been persecuted or has suffered serious harm or been subjected to direct threats of such persecution or harm.
The European Court of Human Rights ruled that the removal of families belonging to the Sikh religious minority to Afghanistan would not constitute a violation of Article 3 ECHR, as the applicants’ situation failed to reach the severity threshold required by this Article. Despite the fact that the Sikh community suffers from intimidation and intolerance within the Afghan society, the Court did not find that this group is the target of a practice of a systematic practice of ill-treatment, despite any difficulties they may be facing in the country.
The ECJ has to decide on the assessment of the existence of a serious individual threat by reason of mere presence in a certain area. It has to decide whether there is a minimal threshold of civilian fatalities that excludes such risk or if a holistic approach taking into account all circumstances special to the case has to be followed to assess the existence of such threat.
In order to guarantee that an applicant for international protection has an effective judicial remedy within the meaning of Article 47 of the Charter, a national court or tribunal is required to vary a decision of the first-instance determining body that does not comply with its previous judgment. The court or tribunal must substitute its own decision on the application for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way.
The ECtHR ruled that failure to allow a Russian family with five children to submit asylum applications on the Lithuanian border and their removal to Belarus amounted to a violation of Article 3 ECHR.
CJEU rules on the correct processing of applications for international protection lodged separately by family members and the interrelationship between them.
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 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.