Case summaries

The Court granted permission to the Applicant to seek judicial review of the negative decision made in a written appeal (rather than an oral appeal) in an application for refugee status made by a South African national. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ but because the appeal decision was based on personal credibility, the absence of an oral hearing may have been unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive.

This case concerned a real well-founded fear of persecution (re-enslavement of the Applicant), failure to recognise the Applicant's refugee status as a member “of a particular social group” and a finding that his fear was not due to the grounds for persecution as defined by Article 1A of the Convention.

It was held that, should he return to his country, there was a risk that the Applicant would suffer serious harm (inhuman and degrading treatment because of potential re-enslavement) which justified granting him subsidiary protection under Article 15(2)(b) of the Directive.

Furthermore, and irrespective of the above, the Committee felt that it would amount to inhuman and degrading treatment under the said Article if the Applicant (who was suffering from chronic renal failure and hypertension) were deprived of the appropriate medical care and treatment for his condition, believing that should he return he would possibly not have access to the health care system (which was, in any case, deemed ineffective) in his country of origin, and this would be tantamount to a breach of Article 3 of the ECHR.

B.G., a citizen of the Russian Federation, applied for refugee status, citing persecution experienced due to his brother being in prison. The authorities of both instances questioned his credibility, citing numerous inconsistencies in the various testimonies given. The foreignor then appealed to the Regional Administrative Court, which dismissed the appeal on the grounds that the proceedings had been conducted properly and referring to the fact that the foreignor was able to flee internally in his country of origin.

The authority conducting the proceedings provides, where necessary, translations into Polish of documents in a foreign language that are admissible as evidence in refugee status proceedings.

The option of internal flight means that if there is a part of the country of origin where there are no circumstances justifying the foreignor's fear of persecution or serious harm and it can reasonably be presumed that the foreignor will be able to move there without impediment, there is no well-founded fear of persecution or actual risk of serious harm in the country of origin. If the conditions in one region do not suit the foreignor, he can try to move to another part of the country.

The age of the child and the mental state of the Applicant as well as the ban on more detailed questioning on the reasons for fleeing in the initial police interview should have been taken into account to a greater extent when assessing the assertion of flight. The lack of discussion of these aspects represents a failure to investigate several decisive points, which made the decision by the Asylum Court arbitrary and therefore unconstitutional

A decision to transfer the applicant to Italy, solely based on Italy’s failure to respond to a request to take back the applicant, was insufficient, arbitrary and violated the applicant’s right to equal treatment. The Asylum Court had neither listed any criteria of the Dublin II Regulation that would indicate that Italy was responsible nor addressed the issues concerning the travel route of the applicant and his long stay in Greece.

An asylum application within the meaning of the Asylum Procedures Directive, Article 2, introductory paragraph and Article 2(b), has been made if a foreigner notifies the authorities that he would like to apply for asylum. The provision of the Foreigners Act under which a foreigner who has been declared undesirable has no right to remain is in breach of Article 7 of the Asylum Procedures Directive.

The Applicant was a homosexual male from Iran who had renounced Islam and was studying the catechism of the Roman Catholic doctrine. It was held that the Applicant had no well-founded (objective) fear of persecution on the grounds of changing his religious beliefs.

Regarding the risks associated with his sexual orientation, the fear that the Applicant expressed was deemed to be well-founded, and it was held that not externalising his sexual orientation to avoid danger would, in and of itself, constitute serious harm to his right to respect for his private life and his right to not be discriminated against. Therefore, his refugee status was recognised and he was granted the international protection in the form of refugee status.

This case involved recognition of refugee status under Article 1A(2) of the 1951 Convention on grounds of religious beliefs.

More specifically, it was held that the arrest and torture the Applicant suffered at the hands of his father and the State authorities because of his Christian faith, the risk of being executed for apostasy because he was baptised in Greece, and the risk of being arrested and maltreated again should he return to Iran, constituted persecution under Article 1A(2) of the 1951 Convention, the actor of persecution being the State. Furthermore, being forced to conceal one's religious beliefs and/or proclaim belief in another religionin order to avoid persecution and/or deprivation of basic rights constitutes a breach of religious freedom under Article 9 of the ECHR and also the related case law of the ECtHR.

The application by the Applicant for the assignment of a legal adviser for the appeal proceedings was rejected by the Asylum Court because it was late, as the Applicant had only submitted the application after the expiry of the one-month transition period. The Constitutional Court annulled the corresponding transitional regulation on grounds of unconstitutionality: a deadline of only one month was too short to deal with the lack of understanding of asylum seekers of the language and law.

The third action in a row brought by a foreign woman for refugee status ended in the issue of a judgment dismissing the case as it was found that the basis for the application was the same as in the previous cases and the application was therefore inadmissible. The Court overturned the negative decision by the Polish Council for Refugees, as the new application by the foreign woman stated that she had divorced her then husband and had been in a relationship for a year with a Polish citizen, which might cause persecution on religious grounds were she to return to her country of origin.