Case summaries

The complainant is a Sunni Muslim from Mogadishu, Somalia. In July 2015 the Danish Immigration Service decided that his subsidiary protection status under the Danish Aliens Act. Art. 7 (2) had lapsed according to the Danish Aliens Act Art. 17 (1) and (4). The Refugee Appeals Board did not consider that the Danish Immigrations Service had lifted its burden of proof according to the Danish Aliens Act Art 17 (4). Consequently, the Board granted the complainant continued subsidiary protection under the Danish Aliens Act Art. 7 (2).  

The complainant is an ethnic Galadi and a Muslim from Afgoye, Somalia. On 6 April 2017, the Danish Immigration Service decided not to prolong the complainant’s subsidiary protection under the Danish Aliens Act Art. 11 (2), cf. Art. 19 (1) no. 1 and Art. 19 (7) cf. Art. 26 (1).

After an overall assessment of the country of origin information the Board found that a deportation of the complainant to Afgoye no longer constitutes a violation of Denmark’s international obligations including ECHR article 3. However, regarding the assessment under the Aliens Act article 26, the Board found that due to the applicant’s economic, linguistic and social integration the Immigration Service’s decision to end the applicant’s subsidiary protection was incorrect. Thus the Board decided to uphold his subsidiary protection under the Danish Aliens Act Art. 7 (2).

The Refugee Appeals Board reversed the Danish Immigration Service decision to Dublin Transfer a female asylum seeker and her two minor children to Italy. The Board found that a transfer to Italy could amount to a breach of Article 4 of the EU Charter of Fundamental Rights as reception conditions in Italy are subject to certain shortcomings and the asylum seeker and her two minor children were considered to be extremely vulnerable. 

The National Court for the Right of Asylum (CNDA) has a responsibility to follow the general rules on closing files. Where this is not done, the Court can be found negligent.  

The court gave guidance on the application of a structured approach to credibility assessment.

The following questions are referred to the Court of Justice of the EU for a preliminary ruling:

(i) when dealing with transfer of a protection applicant under regulation 604/2013 to the UK, is a national decision-maker, in considering any issues arising in relation to the discretion under art. 17 and/or any issues of protection of fundamental rights in the UK, required to disregard circumstances as they stand at the time of such consideration in relation to the proposed withdrawal of the UK from the EU;

(ii) does the concept of the “determining member state” in regulation 614/2013 include the role of the member state in exercising the power recognised or conferred by art. 17 of the regulation;

(iii) do the functions of a member state under art. 6 of regulation 604/2013 include the power recognised or conferred by art. 17 of the regulation;

(iv) does the concept of an effective remedy apply to a first instance decision under art. 17 of regulation 604/2013 such that an appeal or equivalent remedy must be made available against such a decision and/or such that national legislation providing for an appellate procedure against a first instance decision under the regulation should be construed as encompassing an appeal from a decision under art. 17;

(v) does art. 20(3) of regulation 604/2013 have the effect that in the absence of any evidence to displace a presumption that it is in the best interests of a child to treat his or her situation as indissociable from that of the parents, the national decision maker is not required to consider such best interests separately from the parents as a discrete issue or as a starting point for consideration of whether the transfer should be take place.

Concerning the criteria of “filing the application” in § 75 S. 2 VwGO, the informal request for asylum according to § 13 AsylG must be taken into consideration as the relevant date and not the formal lodging of the application according to § 14 AsylG when the Federal Office fails to provide an opportunity to lodge an application. Otherwise, the work overload that the Federal Office is facing, would be a detriment for the applicant, both concerning the scheduling for the formal application and concerning the examination of the application. 

The Supreme Court upheld the judgement of the Eastern High Court that it was not in contravention of the ECHR Article 8 that a Syrian man with temporary protection status in Denmark had to wait 3 years for family reunification with his spouse who was still in Syria. Further, the Supreme Court held that the decision was not in breach of the prohibition of discrimination under Article 14 ECHR.

The Court held that where asylum applicants are prevented from obtaining necessary documentation that would allow them to be granted a license to marry, due to their severed ties with their countries of origin, a simple statutory declaration will suffice as proof that there are no legal obstacles preventing them from getting married.   

Detention of asylum seekers should only be permitted under the conditions prescribed by the law. The detention and deportation orders should always provide sufficient legal justification including the objective facts leading to the administrative authorities’ decision.