Case summaries

This inadmissibility decision concerned the transfer of Mrs. Hussein and her children to Italy from the Netherlands under the Dublin II Regulation. The Court found the applicant’s complaints under Article 3 ECHR and Article 13 ECHR as manifestly unfounded within the meaning of Article 35(3)(a) of the Convention. The Court found that though there were shortcomings in Italy it did not disclose systemic failures to provide support for asylum seekers there. 

A Gambian asylum seeker’s account of approximately eight years’ imprisonment and torture there was not considered credible. The Immigration Service and the Helsinki Supreme Administrative Courtconsidered the application to be manifestly unfounded and  the Supreme Administrative Court did not give leave to appeal on the matter. The UN Committee against Torture had, however, requested that the Applicant   not be returned to his home country, The Gambia, until UNCAT had examined the complaint. 

In the present case certain formal conditions for dismissing the application through an accelerated procedure as defined in Article 54 of International Protection Act (ZMZ) were not taken into account. The Ministry of the Internal (MI) did not take a stance as regards the circumstances that the Applicant claimed as the grounds for leaving his country of origin and applying for international protection.

The case refers to an appeal to the Supreme Court brought by the Appellant against the High National Court’s judgment to uphold the Ministry of the Interior's decision to deny asylum. The Appellant is of Sahrawi origin. In the application he claims that one day the Moroccan police forces began to dismantle the Gdeim Izik (El Aaiun) camp, where the Applicant was living, violently suppressing the Sahrawi people who were there.

The appeal progressed because the denial was agreed via an accelerated procedure – similar to a “dismissal” – using Article 21.2o of Act 12/2009 (when someone alleges contradictory, implausible or insufficient infomation, or information that contradicts verified knowledge about the country of origin, clearly showing that their application is unfounded).

 The Supreme Court maintained that although this is classed as a “refusal” (“denegación”), in actual fact it has the scant guarantees of “inadmissibility”:  the application was rejected without having been fully analysed by the Interministerial Asylum and Refugee Commission or via an urgent procedure.

The legal proceedings relating to an appeal regarding the granting of international protection are a summary process that give the judge certain official powers. As a consequence, the judge should decide on the merits of an appeal even if the Applicant fails to attend the hearing.

Foreigners who have lodged an application for international protection cannot be taken into detention pending deportation as a person remaining in the country unlawfully.

If a more recent application for international protection has been lodged in the transfer country, then the Applicant will again be assigned the status of an asylum seeker in accordance with the Dublin II Regulation. The (re-)receiving country must undertake an examination of the application for asylum made in another Member State, even if it is a “subsequent application”.

Regardless of the parallel extradition proceedings, the Ministry of the Interior is obliged within the proceedings to assess the consequences of prosecution of the Applicant for a criminal offence in the country of origin in the context of fulfilling the conditions for international protection. In case of fear of action by private persons, the possibility and effectiveness of protection provided by the state against such actions is to be assessed.

There has been a violation of Article 47 (2) of the Charter of Fundamental Rights of the European Union if there is a failure to hold a hearing at the Asylum Court, notwithstanding that the facts of the case are not sufficiently clear. Merely general statements without reference to the case in point do not represent sufficient grounds for the lack of credibility of the submission.

The Applicant, an unaccompanied Afghan minor, stated that he had left his home country owing to his abduction and the threat of sexual abuse by the local ruler. The right to a decision by the statutory judge was violated by the fact that the decision on the application for international protection was made by a court panel consisting of two judges, one male and one female.

It is the duty of the Applicant to show that he has been persecuted or is at serious risk of persecution. He should describe that persecution and present it to the fullest extent possible, showing how it relates to him in particular. Lack of acceptance by one’s family, social ostracism, and the negative perception of people of a different sexual orientation do not constitute grounds for according refugee status. However, given that the foreigner’s illness (AIDS) is at a very advanced stage and that he is undergoing treatment for epilepsy, it is necessary to consider whether deportation to his country of origin would violate his right to life.