Case summaries
An applicant’s interest in remaining in a Member State pending a decision on their right to remain will prevail if, due to a lack of knowledge about the actual living situation of refugees in the third country and negative public reports regarding such situations, there can be no assurance that the applicant will be safe in said third country.
The State is obliged to adopt legislation which allows the refugee to actually exercise the right to respect for family life in its territory. Under Article 53(3) of the Constitution of the Republic of Slovenia the scope of family life firstly includes the nuclear family and secondly, where specific factual circumstances dictate, members of the family who are not nuclear but who are similar or perform the same function.
The legislator limited the right to family reunification by enacting an exhaustive definition of eligible family members for reunification, excluding any other form of family unity. According to the Constitutional Court, the legislator disproportionately restricted the right of refugees to respect for family life and violated the right of the appellant under the Article 53(3) of the Constitution.
In light of the provisions of Article 5 Dublin III Regulation, which serve to protect the asylum seeker in a Dublin transfer, the individual subject to a Dublin transfer decision must be seen to have a subjective right to a personal interview. Before such an interview, which must take into account the subjective perspective of the individual, has been conducted in a manner which meets the criteria of Article 5 of Dublin III, the authorities cannot conclude that no obstructions to the removal are present.
Where negative reports regarding the reception conditions and inhuman or degrading treatment in a first country of asylum indicate that an Applicant may not be safe in such a country, an Applicant’s request to remain in a Member State pending a decision on their right to remain must be given the benefit of doubt and outweigh the public’s interest in immediate enforcement of the ordered transfer.
An Applicant who has been convicted of a serious crime is excluded from the right to claim protection. A life sentence with an undeterminable term does not constitute a temporary obstruction to deportation and therefore an Applicant cannot claim obstruction as grounds for leave to remain. Further, a family connection which has been examined by a criminal court as part of a final judgment cannot be re-examined as part of an asylum application.
In Dublin Transfer matters handled by the Migration Board, an Applicant may have the right to Legal Aid even though this right is not specifically provided in the Dublin III Regulation. In such cases, the right to Legal Aid will be provided pursuant to the Swedish Aliens Act and will depend on factors such as indications that a transfer should not occur due to circumstances in the receiving Member State or other reasons which would make it inappropriate to execute the transfer.
A Palestinian who leaves Syria due to the unstable security situation as a result of the Syrian conflict must be regarded as having been forced to leave UNRWA’s area of operations and may thus qualify as a refugee without being required to show fear of persecution.
The appellant sought to have the decision of the Secretary General of the Ministry of Public Order annulled, under which her previous application for her and her son to be recognised as refugees had been rejected. The Hellenic Council of State rejected the current appeal, due to the fact that the appellant had invoked financial reasons for leaving Syria and as such, had no legal basis to be recognised as a refugee.
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 case focused on, among other things (consideration of documentation & country of origin information), the crucial issue of the duty of the State to provide appropriate and competent interpreters during the asylum process. Quashing the RAT (Refugee Appeals Tribunal)decision in this case, Faherty J ruled that she was not satisfied that the RAT had done its utmost, as required by law, to procure a Kurdish-Badini interpreter, and that the Court has to countenance the possibility that an error in interpretation could account for the perceived discrepancies in the applicant’s oral evidence.