Case summaries

Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.

The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children. 

The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.

The presumption of minority does not apply when bone testing shows the applicant’s majority and when a doctor does not express doubts on the results. The tribunal did not request further tests. 

The Secretary of State had appealed the decision of the FTT (supported by the Upper tribunal) on several grounds of error in law. The Court upheld the tribunal on the issue of whether they had considered the gravity of the respondent’s offences  (section 72 of the 2002 Act); but found that the tribunals had indeed erred when considering the application of Article 1C(5) of the Refugee Convention, and on the applicability of Article 8 ECHR. They consequently remitted the case of MM’s deportation to the Upper Tribunal for re-examination in its entirety, based on these errors in the previous decisions. The statement of the referral left open for the respondent the possibility of an appeal on the basis of Article 3 ECHR. 

The applicant is an ethnic Somali and a Sunni Muslim belonging to the Bon Clan from Mesegawayn in the Galgaduud Region, Somalia. The applicant was originally in 2014 granted subsidiary protection by the Danish Immigration Service under the Danish Aliens Act Art. 7 (2). In February 2017, the Danish Immigration Service revoked the applicant’s subsidiary protection.

The account of the applicant regarding his original application was rejected by the Board due to a lack of credibility.

The majority of the Board found probable that the applicant’s daughter if returned to Somalia would be at risk of forced circumcision.

As the primary applicant, the child was granted refugee status under the Danish Aliens Act Art. 7 (1). Consequently, the cohabiting parents were granted refugee status under the Danish Aliens Act Art. 7 (1) with reference to the UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1 (A) 2 and 1 (F) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, published on 22 December 2009 para. 9.

If the applicant comes from a “safe” country, they must be able to prove that there is no protection as understood in the 1951 Geneva Convention, otherwise his application will be rejected. 

The applicant, an ethnic Turkman and an atheist from Aache, Afghanistan had received death threats from local residents close to the imam as well as from his own father because of his apostasy.

The Refugee Appeals Board found that the applicant because of his apostacy would be at risk of being persecuted by local residents, Afghan authorities and the Taleban. Consequently, the applicant was granted refugee status under the Danish Aliens Act Art. 7 (1).

The imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.

In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.

The claimant’s complaint against a decision denying an onward appeal to the Federal Administrative Court is dismissed. According to Article 132 (2) Number 1 of the Administrative Court Act, a legal question which is of fundamental significance is required for an onward appeal to the Federal Administrative Court. The burden of proof to demonstrate this is on the claimant. The arguments of the claimant, especially a divergent judgement of the Bavarian Administrative Court dealing with similar facts, refer to questions of facts, which are reserved for the initial appeal court. 

An applicant may be granted refugee status under Article 1 of the 1951 Geneva Convention for fear of persecution based on sexual orientation. This depends on whether or not, according to the conditions prevailing in the country of origin, persons sharing a sexual orientation may be regarded as a social group within the meaning of the Convention.