Case summaries

The physical border around the enclave of Melilla is conformed by two fences and the intermediate zone created between them. The Spanish military police (Guardia Civil) considers that until a migrant has not overcome the second fence he or she has not entered into Spanish territory and therefore, Spanish law, including the Organic Act 4/2000 on the Rights and Liberties of Foreigners in Spain and their Social Integration (“Aliens Act”), does not apply to a migrant apprehended in the intermediate zone.

The Court ruled that, although this interpretation may violate international law, since there is no clear definition under Spanish law of where the border is located, the direct refusal of migrants who have reached the intermediate zone, does not constitute an administrative prevarication offence. 

When verifying an asylum seeker’s claimed sexual orientation, Member States’ freedom of action is constrained by the Charter of Fundamental Rights.

The evaluation of an asylum application should not be based on stereotyped notions and should include an individualised assessment taking into account the applicant’s personal circumstances, vulnerability in particular.

Not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility.

This CJEU ruling concerned the interpretation of Article 6 of Directive 2008/115/EC (‘the Return Directive’) in relation to the right to be heard prior to a return decision being made, to return illegally staying third-country nationals.

It was found that where the national authority had explicitly provided for the obligation to leave national territory in cases of illegal stay in its national legislation and the third-country national had properly been heard in the context of the procedure for examining his/her right to stay; the right to be heard did not require the applicant to be given an additional opportunity to present observations prior to the issue of a return decision. 

This case examined the compatibility of the Dublin II Regulation with the European Convention on Human Rights regarding transfers to Italy under the Dublin II Regulation.

The Court found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if the Swiss authorities were to send an Afghan couple and their six children back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

The CJEU ruled that it had no jurisdiction to answer the questions referred as they concerned the direct interpretation of the provisions of the 1951 Geneva Convention.

Section 62 subsection 3 first sentence No. 5 of the German Act of the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act) does not comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013 which defines ‘risk of absconding’ as the existence of reasons in an individual case, which are based on objective criteria defined by law. Section 62 subsection 3 first sentence No. 5 of the Residence Act names ‘risk of absconding’ as a reason for detention but lacks the required objective criteria to determine the existence of the ‘risk of absconding’. Therefore according to the current legal situation in Germany detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 cannot be based on the detention reason ‘risk of absconding’.

The detention reasons named in Section 62 subsection 3 first sentence No. 2 and No. 3 of the Residence Act comply with the requirements in Art. 2(n) Dublin III Regulation No 604/2013. Detention in order to ensure the transfer as per Art. 28 Dublin III Regulation No 604/2013 can be based on these provisions.

The case concerns the interpretation of Directive 2004/83 and clarifies that the Irish legislation requiring seekers of international protection to follow two separate procedural stages: application for refugee status, and in case of refusal, application for subsidiary protection, is not contrary to EU law if the two applications can be introduced at the same time and if the application for subsidiary protection is considered within a reasonable period of time.

The right to good administration includes the right of any person to have his or her affairs handled impartially and within a reasonable period of time.

The contested judgment is unconstitutional as it does not provide a clear way of assessing the jurisdiction of the third country when dealing with the application. It also reveals that the situation of the Applicant for international protection is unclear in the event that the application is rejected by the third country and the Applicant is not allowed to enter its territory, and shows that it is unclear as to what the Applicant can contest in this procedure.

An efficient legal system that would stop the extradition to a country in which the Applicant could be exposed to inhuman treatment has to have suspensive effect.

A stateless Palestinian woman from Syria who was registered with the UNRWA but who was no longer receiving support from the organisation was granted refugee status by the Migration Court of Appeal, and the case was returned to the Swedish Migration Board for re-examination of the period of validity of the residence permit.

A bad situation in the country of origin does not constitute a sufficient intrinsic reason to accord refugee status or other forms of protection.

One cannot question the credibility of an applicant solely on the basis of a discrepancy between the information stated in the application and the information provided in subsequent stages of the proceedings.