Case summaries

  • My search
  • Relevant International and European Legislation
    1
Esc Del
Esc Del
Esc Del
Esc Del
Esc Del
Esc Del
Reset
France – Lille Administrative Tribunal, 16 December 2016, 1609141
Country of applicant: Unknown
Keywords: Request that charge be taken, Dublin Transfer, Request to take back

The following question is referred to the CJEU under the expedited procedure provided for in Article 105 of the Rules of Procedure:

Does Article 26 of the Dublin Regulation III prevent the competent authorities in a Member State, who have requested another Member State to take responsibility under a take back or take charge request of an applicant who has applied for international protection (which has not yet been ruled definitely upon) or any other person caught by Article 18(1)(c) or (d), from taking a transfer decision and notifying the applicant before the requested State has accepted the take back or take charge request?

Date of decision: 16-12-2016
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 3,Article 4,Article 5,Article 17,Article 18,Article 20,Article 21,Article 22,Article 23,Article 24,Article 25,Article 26,Article 27,Article 28,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Cyprus – District Court of Famagusta, 14 November 2016, Case No: 2073/2016
Country of applicant: Iran

The Defendant faced two charges, that of a ‘prohibited immigrant’ and of illegally entering the Republic of Cyprus, whilst at the same time he had applied for asylum. With the aid of effective legal representation, he was found not guilty on both charges. 

Date of decision: 14-11-2016
Relevant International and European Legislation: Art 1A (2),EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 3,Treaty on the Functioning of the European Union 2010/C 83/01
Germany – Administrative Court Berlin, 11 September 2016, 33 K 152.15 A
Country of applicant: Russia (Chechnya)
Keywords: First country of asylum, Revocation of protection status, Subsidiary Protection, Refugee Status, Inadmissible application

A renewed application for asylum in a second country is admissible if the nature of international protection applied for differs from the protection already granted. Deportation to the country of the first application or the country of origin is not to be taken into account in this situation.

Date of decision: 11-09-2016
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,Art 17,Art 15,Art 13,Art 14,European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 18,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Article 10,Article 33,Article 40,Article 46,Article 51,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 3,Article 16,Article 20,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 3,Article 18,EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011,Article 3,Article 12,Treaty on the Functioning of the European Union 2010/C 83/01,Article 78
Hungary – Administrative and Labour Court of Szeged, 8 August 2016, 10.K.27.565/2015/28.
Country of applicant: Nigeria
Keywords: Medical Reports/Medico-legal Reports, Sexual orientation

The Court suspended domestic proceedings and referred the case for preliminary ruling procedure to the Court of Justice of the European Union (CJEU). The Court asked the CJEU to clarify the substance of its ban on exposing applicants for international protection to ‘tests’ to substantiate their sexual orientation.

Date of decision: 08-08-2016
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,Art 2,Art 9,Art 10,Art 4,Art 6,Art 11,Art 13,European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 4,Article 7,Article 20,Article 21,Treaty on the Functioning of the European Union 2010/C 83/01
Slovenia - Administrative Court of the Republic of Slovenia, 29 July 2016, Judgment I U 1102/2016
Country of applicant: Afghanistan
Keywords: Detention, Standard of proof, Dublin Transfer

The Slovenian legislature has not fulfilled its obligations under the provisions of Article 2(n) of the Dublin Regulation. The possibility of an analogous application of Article 68 of the Aliens Act-2 has a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.

Date of decision: 29-07-2016
Relevant International and European Legislation: 1951 Refugee Convention,Art 31,European Union Law,International Law,Council of Europe Instruments,EN - Charter of Fundamental Rights of the European Union,Article 6,Article 53,EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council,Recital (27),Recital (54),Article 9,Article 26,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Recital (9),Article 3,Article 15,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 5,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 2,Article 28,Article 49,EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013,Recital (15),Recital (16),Recital (17),Recital (18),Recital (19),Recital (20),Article 2,Article 7,Article 8,Article 9,Article 10,Article 11,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 78
Poland - Ruling of the Supreme Administrative Court from 28 June 2016 II OSK 1346/16 submitting the request for preliminary ruling to the CJEU and suspending the proceedings
Country of applicant: Unknown
Keywords: Effective access to procedures, Effective remedy (right to), Right to remain pending a decision (Suspensive effect)

The request for a preliminary ruling reads as follows: “Should Article 32 (3) of the Visa Code interpreted in light of Recital 29 of the preamble and Article 47 of the Charter be understood as creating an obligation for a Member State to guarantee the right to an effective remedy before a court?”

In the opinion of the Supreme Administrative Court the wording of Article 32 (3) of the Visa Code does not provide clarity as to whether the EU legislator intended to give the term “appeal” the meaning of any measure envisaged in national law or to give the right to an effective remedy before a respective court. If the CJEU, in the preliminary reference proceedings, states that the right to “appeal” should be exercised before a court, the national law excluding judicial control with regard to the Consulate’s decisions refusing the issuance of a visa would be contrary to Article 47 of the Charter, as well as the principle of equivalence and effectiveness.

Date of decision: 28-06-2016
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 47,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Belgium – Council of State, 23 June 2016, Nr. 235.11
Country of applicant: Albania

The Royal Decree of 11th May 2015 was quashed to the extent that it included Albania in the list of "safe" countries for the purposes of article 57/6/1, paragraph 4, of the law of 15th December 1980.

Date of decision: 23-06-2016
Relevant International and European Legislation: 1951 Refugee Convention,EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005,European Union Law,International Law,Council of Europe Instruments,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Treaty on the Functioning of the European Union 2010/C 83/01
Poland - Ruling of the Regional Court in Przemysl from 23 May 2016 no II Kz 69/16 quashing the ruling of the District Court in Przemysl on prolonging the detention
Country of applicant: Cameroon
Keywords: Detention, Return

The Court found that the national legal provision was incompatible with the Returns Directive. Lodging a complaint against the return decision to the court cannot be a reason for prolonging detention under the Directive. 

Date of decision: 23-05-2016
Relevant International and European Legislation: European Union Law,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 15,5.,6.,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
Germany - Federal Administrative Court, 1 C 22.15, 27 April 2016
Country of applicant: Syria
Keywords: Right to remain pending a decision (Suspensive effect), Subsequent application, Inadmissible application, Responsibility for examining application, Request that charge be taken, Dublin Transfer, Request to take back, Residence document

The Federal Administrative Court (the “Court”) suspended its decision and referred the case to the European Court of Justice (“CJEU”) pursuant to Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) to obtain a preliminary ruling with regards to the following question:

Do the provisions of Regulation No. 604/2013 (“Dublin-III-Regulation”) 

i)  the obligation of a Member State to (re-)file a request to take back the applicant with another Member State; and

ii) the possible transfer of the responsibility for examining an application,

apply in relation to an applicant who has been deported to the Member State where he had first entered the EU and illegally re-enters the Member State that had filed the request to take back and deported the applicant.

The 6-month period under Art. 29 (1) Dublin-III -Regulation begins after the request by another Member State to take charge or to take back the person concerned has been accepted or the fiction of such acceptance (Art. 29(1) first alternative) or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) (Art. 29(1) second alternative). In the second case, the later event determines when the time limit begins to run, unless the time limit for the transfer triggered by the acceptance of the request to take back or to take charge has already expired. In such a case, the latter event is decisive to determine when the period begins, unless the 6-month period triggered by the (deemed) acceptance had already expired. 

Date of decision: 27-04-2016
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 4,EN - Returns Directive, Directive 2008/115/EC of 16 December 2008,Article 6,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 20,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Article 3,Article 7,Article 9,Article 13,Article 18,Article 21,Article 22,Article 23,Article 24,Article 25,Article 27,Article 29,Article 35,Article 49,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)
Austria – Supreme Administrative Court, 31 March 2016, Ra 2015/20/0231
Country of applicant: Iran
Keywords: Effective remedy (right to), Right to remain pending a decision (Suspensive effect), Inadmissible application, Responsibility for examining application, Dublin Transfer, Request to take back

The Supreme Administrative Court (SAC) submitted the following two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling according to Article 267 TFEU:

Are the provisions of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person 1 that confer the right to an effective remedy against a transfer decision, in particular Article 27(1), to be interpreted as meaning that an applicant for asylum is entitled to claim that responsibility has been transferred to the requesting Member State on the ground that the six month transfer period has expired (Article 29(2) in conjunction with Article 29(1) of Regulation No 604/2013 in light of the 19th recital)?
 
If the answer to Question 1 is in the affirmative:
 
Does the transfer of responsibility under the first sentence of Article 29(2) of Regulation No 604/2013 occur by the fact of the expiry of the transfer period without any order or, for responsibility to be transferred because the period has expired, is it also necessary that the obligation to take charge of, or to take back, the person concerned has been refused by the responsible Member State?
Date of decision: 31-03-2016
Relevant International and European Legislation: European Union Law,EN - Charter of Fundamental Rights of the European Union,Article 4,EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003,Article 10,Article 17,EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation),Recital (19),Article 13,Article 17,Article 18,Article 22,Article 25,Article 27,Article 29,Treaty on the Functioning of the European Union 2010/C 83/01,Article 267 § 2,Article 267 § 1 (b)