Case summaries

According to the jurisprudence of the Supreme Administrative Court an oral hearing can only be waived if the complaint does not claim any facts relevant to the assessment which are in contradiction or go beyond the result of the administrative investigation procedures.

On the contrary, it constitutes a substantiated denial of the consideration of evidence by the relevant authority if a complaint questions the credibility of different sources which formed the basis of such consideration. The lack of an oral proceeding in such cases leads to a violation of the obligation to hold a trial.

With regards to a possible exclusion from asylum its severe consequences for the individual do not only require that the exclusion clauses of the 1951 Refugee Convention are interpreted narrowly but also that the facts are sufficiently established in order to determine which conduct the exclusion is based on and to weigh the reprehensibility of the offense against the need of protection of the applicant.

Considerations of the competent authority, which are limited to the assumption that the individual in question has participated in hostilities and has caused the death of opposing soldiers and civilians without further clarifying when,  on which occasion and under which circumstances such participation has taken place, do not meet the requirements for determining whether the criteria for exclusion are fulfilled.  

The legislative prohibition on the right to work for those seeking international protection, for a period of over 7 years, does not breach the right to earn a livelihood under the Constitution, nor does it violate rights codified in the Charter of Fundamental Rights of the European Union or the right to private life under the European Convention on Human Rights.

Discrepancies within evidence brought before the decision maker does not eschew the duty upon said decision maker to investigate the authenticity of the document. A person’s age is to be taken into account when evaluating evidential inconsistencies.

When relying on internal relocation a thorough assessment of all available evidence must be undertaken, including personal circumstances pertaining to the applicant. 

The French National Asylum Court (the “CNDA”)  must assess whether or not the applicant should be granted refugee status or, failing that, subsidiary protection,taking into account all the factual on the basis of the circumstances which are known to the CNDA when it rules. In order to assess the accuracy of the facts reported by an applicant, the CNDA must take into account all evidence presented by an applicant in support of his application. In particular, when an applicant produces circumstantial evidence relating to the alleged risks that he is likely to face if he returns to his country of origin, the CNDA must – after assessing the credibility of such evidence and analysing it in light of the reported facts – assess the potential risks  which the facts reveal and, as the case may be, indicate the elements that led the CNDA to consider these risks to be not sufficiently serious. 

In case a further extension of the detention order inside an Identification and Expulsion Centre is requested by the Police Commissioner, the procedural right to be heard should be granted to the applicant. If the applicant raises an objection to the violation of his right to be heard, the requested authority shall inform of the grounds for refusing to acceede to the applicant’s argumentation. Otherwise the detention order is to be considered invalid.

The physical border around the enclave of Melilla is conformed by two fences and the intermediate zone created between them. The Spanish military police (Guardia Civil) considers that until a migrant has not overcome the second fence he or she has not entered into Spanish territory and therefore, Spanish law, including the Organic Act 4/2000 on the Rights and Liberties of Foreigners in Spain and their Social Integration (“Aliens Act”), does not apply to a migrant apprehended in the intermediate zone.

The Court ruled that, although this interpretation may violate international law, since there is no clear definition under Spanish law of where the border is located, the direct refusal of migrants who have reached the intermediate zone, does not constitute an administrative prevarication offence. 

The Act on International Protection (AIP) does not provide for a legal basis to deprive an asylum applicant of their liberty (which is the case when the applicant is placed in a closed centre for irregular migrants, termed the “Centre for Foreigners”), but only for the restriction of movement (which can be the case when the movement is restricted to the area of the reception centre for asylum seekers).

Issuing a negative decision in asylum proceedings by the Polish Refugee Board results in an obligation to leave the territory of Poland. Such an obligation is not formulated directly in the decision itself, but is based on the legal provisions in place. Therefore, the present decision does pose a direct threat of irreparable consequences for the applicant.

Granting temporary protection, by suspending the decision under which the applicant is obliged to leave the territory, allows for the standards of fair trial and the right to court (which covers the right to a fair trial as well as the right to have the case examined, including to be delivered by a ruling), thus going further than just the right to have the case examined.

An asylum seeker, submitting his claim to a non-competent authority is considered to be staying illegally in the territory of Greece and falls within the scope of the provisions on detention of Directive 2008/115/EC and Law 3907/2011 for returning illegally staying third-country nationals for as long as his identity remains unconfirmed. The deadline for the referral of his application to the competent authorities begins when the applicant provides assistance, as dictated by his duty to cooperate, with regards to the verification of his identity.

This is the subsequent Supreme Court ruling following the preliminary reference ruling by the CJEU in C-604/12 in relation to the examination of subsidiary protection within the asylum procedure in Ireland. The case also addresses the legality in EU law of the two stage procedure in Ireland and the lack of a single asylum procedure.