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Austria - Regional Administrative Court of Upper Austria, LVwG-350363/15/KLi/CHö, 18 December 2017
Country of applicant: Afghanistan
Keywords: Subsidiary Protection, Protection, Refugee Status, More favourable provisions

The Regional Administrative Court of Upper Austria requests a preliminary ruling of the CJEU concerning the interpretation of Article 29 Directive 2011/95/EU in the context of social assistance for persons entitled to asylum with a temporary residence permit.

1) Must Article 29 Directive 2011/95/EU, entitling persons subject to international protection to the same level of social assistance in the Member State as nationals of this Member State, be interpreted as fulfilling the conditions for direct effect as set out in the CJEU’s jurisprudence?

2) Must Article 29 Directive 2011/95/EU be interpreted in the way, that it opposes national legislation that provides for persons with a temporary residence permit the same level of social assistance as for persons falling under subsidiary protection, while persons with a permanent residence permit are allowed to the social assistance provided for nationals of the Member State concerned?

Date of decision: 18-12-2017
Relevant International and European Legislation: European Union Law,EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011,Article 3,Article 24,Article 29,EN - Treaty on the Functioning of the European Union 2010/C 83/01 - Art 288,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Greece – District Court of Mytilene – Anonymised, 118/2017
Country of applicant: Afghanistan, Iran

The Court held that where asylum applicants are prevented from obtaining necessary documentation that would allow them to be granted a license to marry, due to their severed ties with their countries of origin, a simple statutory declaration will suffice as proof that there are no legal obstacles preventing them from getting married.   

Date of decision: 31-10-2017
Relevant International and European Legislation: 1951 Refugee Convention,EN - Charter of Fundamental Rights of the European Union,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Treaty on the Functioning of the European Union 2010/C 83/01
ECtHR - N.D. and N.T. v. Spain, Application Nos. 8675/15 and 8697/15, 3 October 2017
Country of applicant: Ivory Coast, Mali
Keywords: Effective access to procedures, Legal assistance / Legal representation / Legal aid, Procedural guarantees, Return

NB: the case was referred to the Grand Chamber, which issued a new ruling on 13 February 2020. For the EDAL summary of the final judgment, see here.

The continued and exclusive control of contracting State's authorities over individuals creates, at least, a de facto exercise of jurisdiction for the purposes of Article 1 ECHR. 

In light of Spain's jurisdiction over N.D. and N.T, who had attempted to cross the fences separating Morocco from Melilla, Spain was bound by the prohibition of collective expulsions under the Convention. A standardised response of removal to the applicants attempted entry to the Spanish territory without any identification procedure or administrative or judicial measure being first taken meant that the Spanish authorities had violated Article 4 Protocol 4 to the Convention. 
 
The collective expulsion of the applicants was clearly linked to their inability to access a national procedure which would satisfy Article 13 requirements.The applicants had, therefore, also been denied an effective and rigorous remedy which would allow them to contest the collective expulsion. 
Date of decision: 03-10-2017
Relevant International and European Legislation: European Union Law,Council of Europe Instruments,EN - Charter of Fundamental Rights of the European Union,Article 18,Article 19,Article 47,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Article 8,Article 9,Article 11,Article 12,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 1,Article 2,Article 8,Article 12,Article 13,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 1,Article 13,Article 41,ECHR (Fourth Protocol),Art 4,Treaty on the Functioning of the European Union 2010/C 83/01,EN - Treaty on European Union,Article 2,Article 6,Article 78
France - Court of Cassation, Decision No. 1130 FS-P+B+R+I, 27 September 2017
Country of applicant: Sri Lanka
Keywords: Detention, Dublin Transfer

An applicant may not be detained with a view to carrying out a transfer under the Dublin Regulation, in the absence of objective criteria for assessing the existence of a significant risk of absconding, defined in a binding legal provision of general application.

Date of decision: 27-09-2017
Relevant International and European Legislation: European Union Law,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 2,Article 28,EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013,Article 28,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 1 (b)
CJEU - C 18/16, K., 14 September 2017
Keywords: Detention, Refugee Status, Reception conditions

The case concerns the validity of the first subparagraph of Article 8(3)(a) and (b) of the Receptions Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights. 

Date of decision: 14-09-2017
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 6,Article 52,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Article 2,Article 9,Article 13,EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011,Article 4,EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013,Recital (2),Recital (12),Recital (15),Recital (17),Recital (20),Recital (35),Article 8,Article 9,Article 13,Treaty on the Functioning of the European Union 2010/C 83/01,Article 78
France: Council of State (Conseil d’État), 10th May 2017, No. 406122
Country of applicant: Unknown
Keywords: First country of asylum, Protection

In contrast to the obligation to provide information to asylum applicants under the Dublin Regulation, Article 18(1) of the Eurodac Regulation has as its sole purpose and effect the effective protection of the personal data of the asylum seekers concerned. The right of asylum seekers to information contributes, together with the right of communication, the right to rectify and erase the data. 

Date of decision: 10-05-2017
Relevant International and European Legislation: Treaty on the Functioning of the European Union 2010/C 83/01
CJEU - C-638/16 X and X, 7 March 2017
Country of applicant: Syria
Keywords: Effective access to procedures, Inhuman or degrading treatment or punishment, Procedural guarantees, Visa

The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa. 

Date of decision: 07-03-2017
Relevant International and European Legislation: 1951 Refugee Convention,Art 33,European Union Law,International Law,EN - Charter of Fundamental Rights of the European Union,Article 4,Article 18,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Article 3,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 1,Article 3,Treaty on the Functioning of the European Union 2010/C 83/01,EN - Treaty on European Union,Article 78
CJEU - C-578/16 PPU, C.K. and others
Country of applicant: Egypt, Syria
Keywords: Individual assessment, Medical Reports/Medico-legal Reports, Reception conditions, Request that charge be taken, Dublin Transfer, Accommodation centre, Health (right to), Vulnerable person

Even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible, a Dublin transfer can only be carried out in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment within the meaning of Article 4 CFR EU.

If there is a real and proven risk that the state of health of an applicant who suffers from a serious mental or physical illness would significantly and permanently deteriorate, that transfer would constitute a violation of Article 4 CFR EU.

It is for the courts and authorities of the requesting Member State to eliminate any serious doubts concerning the impact of the transfer on the health of the person concerned by taking all necessary precaution. If the taking of precautions is not sufficient, it is for the authorities of the Member State concerned to suspend the execution of the transfer for as long as the applicant’s conditions render him unfit for transfer.

Member States may choose to conduct its own examination of that person’s application by making use of the “discretionary clause” laid down in Article 17(1) DRIII, but is not required to do so.

Date of decision: 16-02-2017
Relevant International and European Legislation: Art 33,Article 1,Article 4,Article 19,Article 51,Article 52,Article 17,Article 18,Article 19,Article 3,Recital (4),Recital (5),Recital (9),Recital (32),Recital (34),Article 3,Article 12,Article 17,Article 27,Article 29,Article 31,Article 32,Article 267 § 2,Article 267 § 1 (b),Article 78
Belgium – Council for Alien Law Litigation, 10 February 2017, n 182.109
Country of applicant: Congo (DRC)
Keywords: Exclusion from protection

After having committed several offences qualified as being of a ‘particular gravity’, Mr.O’s refugee status was revoked on April 21st 2006.

Upon appeal to the Council of Alien Law Litigation (‘CALL’), the question of the validity of article 55/3/1 of December 15th 1980 law (the ‘1980 Law’) arose. Although it is established that this provision is transposing article 14(4) of the Directive 2011/95/EU, its compatibility with the Geneva Convention must be verified.

The Council refuses then to pronounce itself on the question, arguing the competency of such matter is vested in the Court of Justice of the European Union.

Date of decision: 10-02-2017
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,1951 Refugee Convention,Art 2,Art 12,Art 17,Recital 4,Recital 21,Art 14,Art 1,Art 1A,Art 32,Art 1F,Art 33,Recital 16,Recital 12,European Union Law,International Law,EN - Charter of Fundamental Rights of the European Union,Article 18,Recital 14,Treaty on the Functioning of the European Union 2010/C 83/01,Article 78
Germany - Administrative Court Minden, 22 December 2016, 10 K 5476/16.A
Country of applicant: Eritrea
Keywords: Delay, Effective remedy (right to), Right to remain pending a decision (Suspensive effect), Responsibility for examining application, Request that charge be taken, Dublin Transfer

Request to the European Court of Justice for a preliminary ruling in the following issues:

1.       Transfer of responsibility to the requesting member state under the Dublin Regulations due to procedural delay

2.        Interlinked to this question is whether the plaintiff has a right to request a change of Member State’s responsibility.

3.        Additional questions concern compliance with the Dublin Regulations and its correct implementation, primarily                      relating to the point at which an application for international protection is deemed to be filed.

Date of decision: 22-12-2016
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,European Union Law,EN - Charter of Fundamental Rights of the European Union,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Treaty on the Functioning of the European Union 2010/C 83/01