Case summaries

The UK Court of Appeal held that the Secretary of State’s practice of detaining people under the Detained Fast Track (DFT) system while they await an appeal for a refusal of an application for asylum is unlawful. Although permitted by a policy document, an avenue for appeal within the DFT and its procedures were neither clear nor transparent, and there was no possible justification for detaining people while awaiting an appeal. 

The European Court of Human Rights (ECtHR) has held that the detention of an unaccompanied minor at Soufli border posts for over 5 months constituted a breach of Article 3 of the ECHR as well as a violation of the right to an effective remedy and the right to liberty and security.

A Member State is responsible for the asylum application of an unaccompanied minor if the minor does not have a family member in said Member State and the minor's application has been finally rejected in another Member State, provided that the unaccompanied minor resides in the relevant Member State.

The responsibility for examining an application does not cease to apply upon the mere acceptance of a request to take charge by another Member State.

The applicant’ s description of a situation which gives rise to a risk to his life or physical integrity, deriving from gender-based violence, social or religious group violence, family/domestic violence, which is accepted, tolerated or not tackled by the State, imposes an ex proprio motu further investigation upon the Judiciary. The latter entails an investigation into the control of  violence described by the applicant in terms of whether it is widespread, whether there is impunity for the acts as well as the State’s response

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.

The case examines allegations of the indiscriminate expulsion of foreign nationals from Italy to Greece who had no access to asylum procedures and who subsequently feared deportation to their countries of origin. In regards to four of the applicants, the Court held that Greece violated Article 13 (right to an effective remedy) and Article 3 (prohibition of inhuman or regarding treatment).  It also held that Italy violated Articles 13 and 3 as well as Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens.)

The Council of State denied the Applicants’ appeal against the decision made by the Board of the Office for the Protection of Refugees and Stateless Persons (OFPRA) to include Georgia and the Republic of Albania in the list of safe countries of origin because, amongst other things, these countries are democratic institutions and are parties to the ECHR.

The Council of State granted the Applicants’ appeal against the decision made by the Board of OFPRA to include the Republic of Kosovo in the list of safe countries of origin because, amongst other things, the country’s political and social contexts were unstable and some segments of the population were subject to violence without sufficient police protection.

Ouseley J in the High Court held although the practice and policy of the Secretary of State in operating the Detained Fast Track System (DFT) was not unlawful in its terms, there was room for improvement. The screening process must not only focus on the suitability of a claim for fast-tracking, but it must also consider the impact that a tight timetable and detention may have on the fair presentation of a claim. In addition, lawyers must be allocated to applicants earlier to allow for meaningful instructions to be given and to allow for vulnerable status to be highlighted. Falling short of unlawfulness, the system carried too high a risk that unfair determinations would be made against applicants. 

The case considered an application against the decision of the Secretary of State denying the Claimants a right of in-country appeal against the removal of the Claimants to Italy under the Dublin Regulation. The Claimants argued that their removal to Italy would expose them to a real risk of a breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The court found that there was no evidence to rebut the presumption that Italy would comply with its obligations under EU laws or of special vulnerability in the personal circumstances of any of the Claimants, to support the assertion that Article 3 of the ECHR would be breached by the Claimants’ removal to Italy. 

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.