Case summaries
The Constitutional Court revoked the decision by the Asylum Court, as it violated the right of the Applicant to respect for his family life in accordance with Art 8 of the ECHR. In particular, the reference by the Asylum Court to the possibility of maintaining the relationship with his one-year old child (with asylum status in Austria) by means of modern media (Internet, Skype, telephone,…) was incomprehensible.
The concept of a serious violation of religious freedom according to Article 9(1)(a) of the Qualification Directive (2004/83/EC) does not simply refer to a serious encroachment on the freedom to practice one’s faith in private but also the freedom to practice religion in a public context.
The enforced renunciation of religious activities can constitute persecution. Since persecution may lie in the prohibition itself, the actual future behaviour of the asylum-seeker and associated involvement in the other legal interests of the party concerned (e.g. life and freedom) are not relevant.
When rejecting an application for international protection under the safe third country concept, Article 27 (2) (a) of the Procedures Directive needs to be taken into account. According to this article, the "connection" between the Applicant and the safe third country needs to be ascertained during the process.
The Council of State applied the reasoning employed by the CJEU in its ruling C-179-11 of 27 September 2012 and considered that temporary waiting allowance must be paid to asylum applicants subject to the Dublin II Regulation until they have actually been transferred to the Member State responsible for their asylum application.
The CALL required specific facts to be attributable to the Applicant and the existence of a high threshold of seriousness in order to make a finding of acts contrary to the purposes and principles of the United Nations. In this case the CALL refused to exclude the refugee status of an Applicant who had a criminal conviction for participating in the activities of a terrorist group.
In family reunification cases it is only possible to use DNA testing to verify family ties in situations where serious doubts persist concerning kinship after other forms of evidence have been presented.
The Migration Court of Appeal returned the case to the Migration Court for investigation of whether there is an internal protection alternative for the man from Afghanistan. The Court found that an internal protection alternative must always be investigated as part of the protection assessment.
Based solely on a 2012 UNHCR report, subsidiary protection was granted to the applicant as an individual risk to his life was recognised.
One cannot accept the position that an Applicant must in every case show that he or she has exhausted all available forms of protection in his or her country of origin. The condition of absence of state protection must not in every case be understood to mean an absolute obligation to exhaust all domestic procedures. The fact that the police, as the Applicant has shown, have no basis upon which to launch an investigation would suggest that the Applicant did apply to the state authorities for protection but that no protection was granted.