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Latest Registrations are available here arranged by date of insert/registration in the EASO Case Law Database (not publication)!


CH: The Federal Administrative Court ruled on subsequent applications

05/06/2020

The case concerns subsequent applications. According to Art. 111b and c of the Swiss Asylum Act (https://www.admin.ch/opc/en/classified-compilation/19995092/index.html) subsequent applications must be submitted to the State Secretariat for Migration (SEM) in writing and with a statement of grounds. Applications without a statement of grounds or repeat applications that state the same grounds shall be dismissed without a formal decision being taken. The Federal Court of administration decided that the SEM has also the option of dismissing an application according to general administrative law.

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ECtHR rules on state's positive obligation to provide an effective and accessible procedure to regularise the status of a stateless person in Hungary

03/06/2020

According to the Court's press release,

The applicant, Michael Sudita Keita, is a stateless person (of Somali and Nigerian descent) who was born in 1985 and lives in Budapest. The case concerned the difficulties in regularising his legal situation in Hungary over a period of 15 years. Mr Sudita Keita arrived in Hungary in 2002, submitting a request for recognition as a refugee. The immigration authorities rejected it the same year. He has continued to live in the country without any legal status, apart from one period from 2006 to 2008 when he was granted a humanitarian residence permit as an exile because he could not be returned to Somalia while the civil war was ongoing and the Nigerian embassy in Budapest had refused to recognise him as one of its citizens. The authorities reviewed his exile status in 2008 and ordered his deportation in 2009, but it was not enforced. Ultimately, in 2017, the Hungarian courts recognised him as a stateless person. His request had at first been refused because he did not meet the requirement under the relevant domestic law of “lawful stay in the country”. That requirement was, however, found unconstitutional in 2015. He submits that he has been living with his Hungarian girlfriend since 2009 and completed a heavymachinery operator training course in 2010. Relying in particular on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, Mr Sudita Keita complained about the authorities’ protracted reluctance to regularise his situation, alleging that it had had adverse repercussions on his access to healthcare and employment and his right to marry.

Conlusion: violation of article 8. Just satisfaction: 8,000 euros (EUR) for non-pecuniary damage and EUR 4,000 for costs and expenses.

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NL: Council of State rules on family reunification and best interest of the child

30/05/2020

The case concerns a - then - fifteen years old unaccompanied minor. She applied for international protection in the Netherlands. The authorities conducted an examination on family members in the EU and found that she has a sibling in Sweden. The Netherlands sent a take charge request to Sweden, accepted by Sweden. Hereafter, the application for international protection was not taken into consideration in the Netherlands.

The girl claimed in the court proceedings that her best interests were not taken into account properly by the authorities whilst they had to do so based on art. 6(3) and 8(1) Dublin III Regulation. On her material intersts she claimed that she does not have a good relationship with the sibling, he does not want to take care of her and she wants to stay in the Netherlands given the fact that her niece, with who she grew up, resides there also.

The court found that the authorities' argument is sufficient to dismiss the appeal. The authorities argued that it follows from the system of Dublin III Regulation that a reunification of an unaccompanied minor is always in the best interests of the child. A child can disagree, but has to present objective evidence.

The case reached the Council of State, where a court hearing took place in December 2019. The arguments presented were the same. Nidos also underlined that the child's interest is to stay in the Netherlands.

The Council of State finds that the starting point must be that a child is unified when possible. This does not mean however, that the authorities can simply ask a Member State to be responsible without any examination of the best interest of the child. They have to conduct a best interests assessment in every case, asking - when necessary, Nidos and/or the child. The Council of State declared the appeal well-founded and annulled the decision of the lower court.

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IT: Court of Cassation ruled on the right to a hearing in appeal procedures when the videotape of the personal interview is not available

26/05/2020

The applicant, a Malian national, was granted humanitarian protection by the Civil Court of Napoli, while being refused the status of refugee and subsidiary protection. The decision of the civil court took into consideration the transcription of the personal interview and was taken in the absence of a hearing. For this reason, the applicant filed an appeal before the Court of Cassation. The Court of Cassation allowed the appeal and held that according to national legal provisions, if the video recording of the personal interview is not available for technical reasons, the applicant must be provided with a hearing and the judge does not have discretionary power on whether such a hearing is to be allowed. The Court of Cassation sent the case back to the Civil Court of Napoli.

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IT: Court of Appeal ruled on state-funded right to legal aid

26/05/2020

The applicant appealed the decision of the Caserta Territorial Commission which rejected an application as manifestly unfounded. The Territorial Commission rejected the grant of refugee status, subsidiary protection and also of humanitarian protection. The appeal was lodged after the 15 day deadline and the court withdrew the right to state funded legal aid. The Court of Appeal of Napoli held that application did not fall under the accelerated procedure and so the deadline for appeal was of 30 days and not of 15 days. Thus, it overturned the decision regarding legal aid. The court also examined the merits of the case looking at all the possible grounds for refugee status and subsidiary protection. It concluded that the applicant is to be granted humanitarian protection. 

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CJEU rules on suspensive effect of second appeals procedures

26/05/2020

The applicant, a Nigerian national, requested asylum in Italy. The application was rejected both in first instance and on appeal. Before the Supreme Court of Cassation, the applicant requested the suspension of the enforcement of the decision, claiming that he would be at risk of inhuman and degrading treatment in Nigeria. 

The CJEU reiterated its previous findings in Gnandi and Samba Diouf that Member States are not obliged to provide two levels of appeal or an automatic suspensory effect for a second appeal. 

 

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ECtHR rules on jurisdictional application of the Convention for Syrian nationals applying for humanitarian visas from Belgian Consulate in Lebanon

26/05/2020

Accorinding to the Court's Press Release

In its decision in the case of M.N. and Others v. Belgium (application no. 3599/18), delivered by the Grand Chamber, the European Court of Human Rights has by a majority declared the application inadmissible. The case concerned a couple of Syrian nationals and their two children, who were refused the shortterm visas that they had requested from the Belgian Embassy in Beirut with a view to applying for asylum in Belgium.

The applicants claimed that there had been a breach of their rights under Articles 3 (prohibition of torture and inhuman or degrading treatment), 13 (right to an effective remedy) and 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

The Court reiterated that Article 1 (obligation to respect human rights) of the European Convention limited its scope to persons within the jurisdiction of the States Parties to the Convention. In the present case, it noted that the applicants were not within Belgium’s jurisdiction in respect of the circumstances complained of under Articles 3 and 13 of the Convention.

The Court also considered that Article 6 § 1 of the Convention was inapplicable in the present case. The entry to Belgian territory which would have resulted from the visas being issued did not engage a “civil” right within the meaning of Article 6 § 1. Lastly, the Court noted that this conclusion did not prejudice the endeavours being made by the States Parties to facilitate access to asylum procedures through their embassies and/or consular representations.

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CJEU rules that placing those subject to a return decision in the Röszke transit zone at the Serbian-Hungarian border must be classified as ‘detention’

25/05/2020

According to Press Release No 60/20 of the CJEU :

Afghan nationals (Case C-924/19 PPU) and Iranian nationals (Case C-925/19 PPU), who arrived in Hungary via Serbia, lodged applications for asylum from the Röszke transit zone, on the Serbian-Hungarian border. Pursuant to Hungarian law, those applications were dismissed as inadmissible and decisions requiring the applicants to return to Serbia were adopted. However, Serbia refused to readmit the persons concerned into its territory, on the ground that the conditions set out in the Agreement on readmission concluded with the EU were not met. Following that decision of Serbia, the Hungarian authorities did not examine the substance of the applications referred to above, but amended the country of destination mentioned in the initial return decisions, replacing it with the respective country of origin of the persons concerned. Those persons then lodged objections against the amending decisions which were rejected. Although no provision is made for such a remedy under Hungarian law, the applicants brought an action before a Hungarian court for annulment of the decisions rejecting their objections to those amending decisions and to have the asylum authority ordered to conduct a new asylum procedure. They also brought actions for failure to act relating to their detention and continuing presence in the Röszke transit zone. They were first obliged to stay in the sector of that transit zone reserved for applicants for asylum before being required, several months later, to stay in the sector of that zone that is reserved for third-country nationals whose asylum applications have been rejected, the sector which they are currently in.

The Court first held that detaining the persons concerned in that transit zone must be regarded as a detention measure. According to the Court, the conditions prevailing in the Röszke transit zone amount to a deprivation of liberty, inter alia because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever. In particular, they may not leave that zone for Serbia since such an attempt (i) would be considered unlawful by the Serbian authorities and would therefore expose them to penalties and (ii) might result in their losing any chance of obtaining refugee status in Hungary.

As regards the requirements related to detention, the Court held that, under Article 8 of the ‘Reception’ Directive and Article 15 of the ‘Return’ Directive respectively, neither an applicant for international protection nor a third-country national who is the subject of a return decision may be detained solely on the ground that he or she cannot meet his or her own needs. It added that Articles 8 and 9 of the ‘Reception’ Directive and Article 15 of the ‘Return’ Directive respectively preclude an applicant for international protection or a third-country national who is the subject of a return decision from being detained without the prior adoption of a reasoned decision ordering that detention and without the need for and proportionality of such a measure having been examined.

The Court also provided clarification on the requirements related to the continuation of detention and, more specifically, to the duration of detention. As regards applicants for international protection, it held that Article 9 of the ‘Reception’ Directive does not require Member States to lay down a maximum period for continuing to detain such applicants. By contrast, in the case of third-country nationals who are the subject of a return decision, it is apparent from Article 15 of the ‘Return’ Directive that their detention - even where it is extended - may not exceed 18 months and may be maintained only as long as removal arrangements are ongoing and are executed with due diligence.

Furthermore, as regards the detention of applicants for international protection in the particular context of a transit zone, it is also necessary to take account of Article 43 of the ‘Procedures’ Directive. […] although the Member States may, in the context of a procedure referred to in that Article 43, detain applicants for international protection who present themselves at their borders, that detention may not under any circumstances exceed four weeks from the date on which the application was lodged.

Lastly, the Court held that the lawfulness of a detention measure, such as the detention of a person in a transit zone, must be amenable to judicial review under Article 9 of the ‘Reception’ Directive and Article 15 of the ‘Return’ Directive respectively. […] Moreover, if, following its review, the national court considers that the detention measure at issue is contrary to EU law, that court must be able to substitute its decision for that of the administrative authority which adopted the measure and order the immediate release of the persons concerned, or possibly an alternative measure to detention.

 

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AT: Supreme Administrative Court rules on whether Nigerian national delayed the enforcement of a return decision

17/05/2020

The case concerns a Nigerian applicant who made unsuccessful applications for international protection in April 2015, January 2017 and May 2018, and decisions to return him were issued. The applicant was arrested on 6 June 2019 in execution of a detention order that had since been issued and, after being questioned, received a notification from the Federal Office for Foreign Affairs and Asylum (BFA) on the same day on detention pending deportation. During detention pending deportation, the applicant filed another application for international protection on 13 June 2019. The court ruled on whether the applicant had delayed the enforcement of a return decision and on how the birth of his daughter in Austria affected his deportation.

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AT: Supreme Administrative Court rules on subsequent application and detention pending deportation of Nigerian national

17/05/2020

The applicant, a Nigerian national, requested international protection after entering Austria on 21 September 2015. This application was rejected by decision of the Federal Office for Aliens and Asylum (BFA) on 31 October 2017. A return decision was issued against the applicant and it was not contested. The applicant, who subsequently traveled to Germany, made a further request for international protection after returning to Austria on 15 January 2018. The applicant was detained pending deportation and challenged the detention order. The case was dismissed.

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