Case summaries
If an applicant raises circumstances that could present a potential breach of Art 3 ECHR it is impossible to reject the application as manifestly unfounded. The case must be considered on its merits and the deciding authority needs to have accurate COI.
If re-examination of a case under the Aliens Act Chapter 12 Section 19 (provides for re-examination of a claim on the presentation of information supporting a need for international protection) has been granted, the Migration Board cannot deny a residence permit without an oral healing having been held.
A time limit of seven days to submit an appeal against the decision on a manifestly unfounded asylum claim is too short to ensure an effective remedy.
When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.
The Council of State ruled that new evidence submitted in a subsequent application for asylum that is relied upon to prove facts and circumstances in the first application and/or to refute grounds of refusal of the first asylum application, is not to be considered a new element within the meaning of Art 51/8, Belgian Aliens Law (please see comments section below).
It is in violation of Art 13 of the ECHR (Right to an Effective Remedy) in conjunction with Art 3 of the ECHR (Prohibition of Torture) that the applicant may not await the court’s decision on his request for a temporary injunction against his expulsion in the Netherlands, even though he has an arguable claim under Art 3 of the ECHR. Further that Art 39 of the Procedures Directive is not correctly implemented in Dutch law.
Internal protection has to be assessed in accordance with the Qualification Directive, and under very strict criteria. The possibility of relocating to another part of the country has to be available to the applicant and the protection has to be effective.
The discrepancies between the evidence which the Administration and the asylum Applicant presented to the Council of State created serious doubts about whether the facts invoked by the Applicant to confirm his refugee status were correctly recorded and in general about the lawful examination of the said application in compliance with the procedures stipulated by the provisions of Articles 2(3) and 3(7) of Presidential Decree 61/1999.
An intervention by the French urgent applications judge [juge des référés] on the grounds of urgency is not considered until a decision on a transfer of an asylum applicant under the Dublin Regulation has been made. In this case, the asylum applicant was not yet subject to a transfer decision and there was therefore no particular need for an urgent intervention within the 48-hour period, as provided by article L.521-2 of the French Code on Administrative Justice.
This case concerned subsequent applications and previous findings. The CALL ruled that, when deciding on a subsequent application, it is not competent to re-judge issues that have been decided in earlier applications. The CALL confirmed that those issues are final, unless evidence is submitted that is of such a nature that it demonstrates in a certain manner that those earlier decisions would have been different had that evidence been submitted at that time.