Case summaries
The assessment for a well-founded fear of persecution under the Refugee Convention must have regard to Country-of-Origin information and reports. Moreover, if the publication of the applicant’s name will have no adverse effect on either him or his family, the appellant’s private life rights, protected by article 8 ECHR, will not outweigh the public interest in open justice, as protected by article 10 ECHR.
The High Court found that the Tribunal failed to ask itself the correct legal questions when assessing the issue of state protection in the applicants’ country of origin.
In specific, the High Court found that the Tribunalfailed to apply the correct approach to the ‘state protection test’ found in section 31 of the International Protection Act, 2015, by not seeking to establish whether an effective system of protection is in place, which is non-temporary in nature and which involves the taking of reasonable steps to protect those who otherwise faced a real risk of persecution or serious harm.
The Federal Administrative Court found that Art. 3 of the Qualification Directive does not hinder Member States to allow parents and siblings, fulfilling the requirements for family members under Art. 2(j) of the Directive, to change their status of subsidiary protection into a refugee status which they derive from their minor sponsor.
The Court found that there was a violation of Article 2 of the ECHR as State authorities used unreliable evidence to conclude their investigation into the death of an applicant. Moreover, the Court concluded that the State authorities violated Article 5 ECHR by failing to conduct an effective investigation into whether there was an alternative to detaining the applicants. As such, the detention of the children in a detention centre was further found to have violated Article 3, especially given the severity of the circumstances of the case and the period of their detention. The Court also concluded that the applicants had been subject to “expulsion” within the meaning of Article 4 of Protocol No. 4, since they were forcibly returned by the Croatian police outside official border crossings and without prior notification to the authorities of the country to which they were being returned.
The Court of Justice held that Directive 2011/95 does not preclude a Member State from granting refugee status to a minor through one of his parents, even though there is no risk of persecution in case of removal to his country of nationality (Tunisia).
Given that the Secretary of State used the same materials in the first and in the review decisions, the High Court found that the Secretary of State did not comply with the standard of review in re-evaluating the case at hand.
In this case the Upper Tribunal provided that the Refugee Convention doesn’t offer protection from social conservatism and that there is no protected right to enjoy a socially liberal lifestyle. However, the Convention may be considered to apply where ‘westernisation’ reflects a protected characteristic such as political opinion or religious belief, or if there is a real risk that the individual in question would be unable to mask his westernisation and persecutors would impute such protected characteristics to him.
Member States may exclude single permit holders, EU Blue Card holders, and long-term residents from a family discount card scheme, provided the card is not classified as "social security," "social assistance," or "social protection" under national law; such classification would bring such card in the field of application of EU law.
However, such exclusion is precluded for beneficiaries of international protection where the card forms part of a welfare scheme addressing basic needs. Separately, exclusion from housing-related benefits is precluded for long-term residents, single permit holders, and highly qualified workers alike, regardless of the card's classification.
Even in the absence of a formal complaint, the repeated notifications of trafficking elements to authorities and broader awareness of migrant worker abuse reported in international resources (ECRI, GRETA reports) triggered a duty to investigate. However, the Government failed to show any effective investigation took place: no attempts were made to identify or question victims or alleged perpetrators, nor were legal-assistance mechanisms used to gather evidence from Bosnia and Herzegovina.
The Court unanimously found a violation of Article 4 § 2 under its procedural limb.
With regard to the granting of subsidiary protection, the existence of real risks to the rights under Art. 2, 3 ECHR must be examined, which includes the obligation to consider ongoing developments on the basis of available information. If a deterioration of the security situation is disregarded, this could be seen as arbitrariness.