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


CH: Federal Administrative Court rules on procedural guarantees for alleged unaccompanied minors

14/08/2020

The applicant is an Ethiopian national who requested asylum in Switzerland in August 2016 and claimed to be an unaccompanied minor without identity documents. An age assessment took place (a radiological examination of his left hand) in which it was determined that he was 18 years old. The applicant was thus treated as an adult during the asylum procedure. His application was rejected. 

The applicant challenged the decision and produced an Ethiopian identity card as proof of the fact that he was a minor. The applicant claimed that he should have been provided the procedural guarantees for unaccompanied minors, such as the designation of a trusted person to represent his interests and being heard as a minor. 

The Federal Administrative Court held that when dealing with an alleged minor, the State Secretariat for Migration (SEM) must adopt appropriate measures to ensure the protection of the individual’s rights. This includes designating a trusted person to represent the interests of the alleged minor. In addition, when identity documents are not produced, the SEM is obliged to carry out an overall assessment of elements in favour of or against the applicant’s alleged minority. Thus, the Federal Administrative Court annulled the decision remitted the case for a re-examination.

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FI: Supreme Administrative Court rules on risk of persecution upon return to Turkey for Kurdish ethnic

14/08/2020

The applicant is a Turkish national of Kurdish ethnicity whose application for asylum was rejected by decision of 15 August 2018 of the Finnish Immigration Service. The applicant stated that he is a member of the Democratic Party of Nations (HDP) and that he has been involved in distributing publications twice a week, taking medicines to Syria and participating in demonstrations. Although the Finnish Immigration Service accepted that he had been arrested several times and beaten, which amounted to persecution, but it also found that the arrests were largely related to the security situation in the area. The Finnish Immigration Service did not accept the fact that the applicant would be of interest to the Turkish authorities in the future given that after his  last arrest, the applicant has remained in Turkey for about six months before leaving the country and he did not alleged to have been threatened or approached during that time. The Administrative Court dismissed the applicant's appeal.

The Supreme Administrative Court held that the applicant's arrest and beatings were to be regarded as acts of persecution and also held that the Kurdish background alone or the membership of the HDP party was not a ground for international protection considering the country of origin information.

However, the Supreme Administrative Court considered that the applicant had significant grounds for believing that he would be subjected to inhuman or degrading treatment by the Turkish authorities. Thus, the Supreme Administrative Court annulled the decisions of the Administrative Court and the Finnish Immigration Service and referred the matter back to the Finnish Immigration Service for subsidiary protection.

 

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CJEU ruled on the provision of the personal interview before an inadmissibility decision is taken

07/08/2020

The case concerned a reference for a preliminary ruling on the provision of the personal interview before an inadmissibility decision is taken. The applicant, an Eritrean national, applied for asylum in Germany in September 2011. Although he had stated that he had not been to another Member State, it was later established that he had already been given refugee status in Italy so he could be taken back to Italy only under the readmission agreement. Thus his application was rejected as inadmissible on the ground that he had entered Germany from a safe third country and his deportation to Italy was ordered.

Before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), the applicant claimed that he was denied a personal interview before a decision was taken.

The CJEU noted that Article 14(1) APD which establishes the obligation to provide a personal interview also applies to decisions on admissibility. Furthermore, according to the judgment of the CJEU, Articles 14 and 34 of the APD "must be interpreted as precluding national legislation under which failure to comply with the obligation to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision on the basis of Article 33(2)(a) of that directive declaring the application to be inadmissible does not lead to that decision being annulled and the case being remitted to the determining authority, unless that legislation allows the applicant, in the appeal procedure against that decision, to set out in person all of his or her arguments against the decision in a hearing which complies with the applicable conditions and fundamental guarantees set out in Article 15 of that directive, and those arguments are not capable of altering that decision."

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NL: The Council of State rules on applicants' entitlement to material reception conditions in cash during the rest and preparation period

03/08/2020

The case concerns the form of material reception conditions provided in 2015, while applicants were accommodated in the reception facility in Heumensoord for their rest and preperation period (rust- en voorbereidingstijd, RVT). Typicaly this period lasts only a few days or a few weeks, but due to the large number of applications in 2015, it often lasted several months. During this time applicants are entitled to material reception conditions in kind. The legality of this provision was examined, as some applicants argued that due to the fact that they were stuck in this process phase, they should have become entitled to in-cash benefits (pocket money).

The Council of State concluded that the fact that the rest and preparation period is longer does not give rise to  an exemption from the Dutch Reception Act, Article 9(5). The Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers, COA) is not obliged to provide during this period material reception conditions in cash - even if the period takes much longer. The Council of State referred to Article 17(2) of the revised Reception Conditions Directive and noted that the COA is obliged to provide an adequate standard of living throughout reception, but the Directive does not oblige the agency to provide a certain form of reception or that the form of reception should be affected by the length of the process.

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BE: The Council for Alien Law ruled on the decision of prolongation of the transfer period in the Dublin procedure

30/07/2020

The two cases are interlinked and concern the appeals of a brother and sister from Pakistan.

Following the decision that another Member State (Germany) was responsible for their asylum application, they received an information package in view of the organisation of the Dublin transfer. This correspondance was accompanied with a declaration form on voluntary return.

The court stated in case nr. 237 902 that the information package itself does not have any impact on the legal situation of the applicants, it is merely a communication form, and as such, the delivery of it is not a legal act, which can be appealed. It is the decision on the prolongation of the transfer period, which can be appealed.

In case nr. 237 903, the CALL noted that - based on the CJEU decision in Jawo (C-163/17) - the mere fact that the applicants did not return the declaration on voluntary return within the legal deadline cannot be automatically interpreted as a sign, that they deliberately wanted to abscond and prevent their transfer. Thus, it cannot automatically lead to a decision on the prolongation of the transfer period.

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FR: CNDA rules that to examine actors of protection and actors of persecution, both the Palestinian and the Israeli authorities are to be considered

29/07/2020

The applicant is a Palestinian from the West Bank, who applied for asylum and invoked a fear of persecution due to criminal proceedings carried out by Israeli authorities after he took photos of the arrest of a Palestinian by Israeli soldiers.

The decision in this case was pronounced after the cassation by the Council of State of a decision issued by the CNDA. The Council of State considered that the CNDA had erred when it considered that the fear invoked by the applicant regarding the Israeli army, in case of his return to the territory of the Palestinian Authority should be examined by taking into consideration only the Palestinian authority while there are also prerogatives for Israel in the Area A of West Bank according to the Agreement Oslo II. 

Upon re-examination of the case, the CNDA held that the examination of the fear invoked by the applicant should take place by taking into account the Palestinian Authority and the Israeli authorities. The CNDA took into consideration two Israeli military ordinances regarding the acts invoked by the applicant, confirming that they are applicable in the Area A of which the applicant is a resident. Furthermore, the CNDA held that these ordinances sanction peaceful expression of political opinions by Palestinians and are at the origin of many arrests, detention and criminal sentences. 

The CNDA also held that since the Palestinian Authority does not have exclusive police power, due to the interpretation that the Israeli authorities impose on security within the meaning of the “Oslo II” Agreements, it cannot be considered, at the date of this decision, an effective actor of national or international protection of a natural person placed under its control, in Area A, within the meaning of article L. 713-2 of the CESEDA ”.

On the substance of the case, the CNDA allowed the request for asylum, considering the fear invoked by the applicant to be founded vis-à-vis the Israeli authorities, due to the political opinions imputed to the applicant on the basis of the photos he took.

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UN Human Rights Committee rules on risk of irreparable harm in case of deportation to Afghanistan of couple who had sexual relations outside of marriage

27/07/2020

The applicants, R.M. and F.M., are Afghan nationals. They fled their country after they had sexual relations outside of marriage and F.M. became pregnant. R.M.'s brother was killed for helping them to escape  from Afghanistan. They arrived in Greece where F.M. gave birth to their first child. Then F.M. travelled and arrived in Denmark in April 2012 where she applied for asylum. R.M. also arrived in Denmark in December 2012 and applied for asylum. Their applications were rejected by the Refugee Appeals Board for lack of credibility (fabricated account and inconsistencies regarding the exact dates in their account).

R.M. and F.M. complained under Articles 6 and 7 of the ICCPR that if returned to Afghanistan they would be exposed to a risk of irreparable harm as sexual relations outside of marriage is a criminal offence in Afghanistan. In addition, given that they had made appeals on television, they were known in Afghanistan, and F.M.'s mental state was affected by the situation and had attempted suicide.

The Committee held that irrespective of the inconsisencies in their account, the Refugee Appeals Board had failed to assess the risk of irreparable harm in the individual case of the applicants. It concluded that their return to Afghanistan would amount to a violation of Articles 6 and 7 of the ICCPR.

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ECtHR rules on legality of detention for minors asylum applicants placed in temporary holding facility in Ukraine

27/07/2020

The case concerns complaints regarding Article 5 of the European Convention on Human Rights, regarding the arrest and detention of two minor applicants after attempting to cross the Ukrainian border with Hungary and Slovakia. The judgment concerns only the second and eighth applicants, nationals of Somalia and Guinea, as the representatives of the rest of the applicants lost contact with their clients.

The applicants were arrested in November 2011 by Ukrainian border guards and because thery were unable to present identity documents, they were placed in the temporary holding facility in Chop. One of the applicants was pregnant and miscarried while being held in the temporary holding facility. Age assessments were carried out and it was determined thatthe second applicant was nineteen to twenty years old while the eighth was eighteen to nineteen years old. However, the eighth applicant later proved with her birth certificate to be a minor. Both applicants were granted subsidiary protection as they would run a real risk of ill-treatment if returned to their countries of origin.

Both applicants complained about the lawfulness of their detention in the temporary holding facility and about not having access to a procedure to challenge the decisions. The Court found that the applicant had been held in the temporary holding facility for longer than the 10 days allowed by domestic law. It found that detention had been illegal for the second applicant from 13 to 17 November 2011 and for the eighth applicant from 27 November to 28 December 2011, and from 11 April to 8 October 2012.

In addition, under Article 5 (4) of the ECHR, the Court held that the applicants did not have at their disposal a procedure to examine speedily the lawfulness of their detention.

The eighth applicant also complained under Article 3 of the ECHR about the detention conditions (minor held with adults) and about the alleged lack of medical and psychological assistance. This complaint was rejected as manifestly ill-founded.

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ECtHR rules on access to gender recognition procedure for an asylum beneficiary in Hungary

27/07/2020

The case concerns access for asylum beneficiaries, and in general for non-Hungarians, to the gender recognition procedure. According to the ECtHR press release:

The case concerned a transgender man from Iran who had obtained asylum in Hungary but could not legally change his gender and name in that country.

The applicant was born a female in Iran but has from an early age identified as a male. In 2015 he applied for asylum in Hungary and in December of that year the asylum authority granted his application, finding that he had suffered persecution in Iran owing to his gender identity (transsexuality). In March 2016 the applicant applied for a gender and name change to the Hungarian Immigration and Citizenship Office given that his Iranian documents identified him as a female. The Office informed the applicant that gender reassignment was in principle registered by the Office of the Registrar of Births, Marriages and Deaths. In July 2016 the Office issued a formal rejection decision without examining the application on the merits, holding that it did not have jurisdiction to take any further action. As the applicant’s birth had not been registered in Hungary, the application could not be forwarded to the registrar. The Budapest Administrative and Labour Court dismissed an appeal by the applicant in November 2016 and in February of the following year the applicant lodged a constitutional complaint. The Constitutional Court rejected the complaint in June 2018, finding that the judge of the lower court could not have found differently in the applicant’s case given the lack in the law of any statutory basis for the changing the names of non-Hungarian citizens. However, it emphasised that the right to change one’s name was a fundamental one, and that making such a change went hand in hand with changing gender. It found the legislative omission to be disproportionately restrictive and unconstitutional and called on Parliament to find a solution to allow lawfully settled people without Hungarian birth certificates to change their name, for example by entering the name change on other official documents issued by the Hungarian authorities. The legislative change requested by the Constitutional Court has not yet been carried out.

The ECtHR noted that the domestic system for gender recognition had excluded the applicant simply because he did not have a birth certificate from Hungary, a change in the birth register being the way name and gender changes were legally recognised. The Court concluded that a fair balance had not been struck between the public interest and the applicant’s right to respect for his private life owing to the refusal to give him access to the legal gender recognition procedure.  

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ECtHR rules on repeated collective expulsions to Belarus and refusal to accept asylum applications at the Polish border from Chechen applicants

23/07/2020

According to the ECtHR's Press release:

The case concerned the repeated refusal of Polish border guards on the border with Belarus to admit the applicants, who had come from Chechnya and had asked for international protection.

The Court found in particular that the applicants had repeatedly arrived at the Terespol border crossing between Poland and Belarus and had made it clear, despite the Polish authorities’ statements to the contrary, that they wished to seek international protection.

Instead, the border guards had returned them consistently to Belarus, without a proper review of their applications. Furthermore, the Government had ignored interim measures issued by the European Court to prevent the removal of the applicants, who had argued that they were at a real risk of chain-refoulement and treatment contrary to the Convention.

The Polish State had demonstrated a consistent practice of returning people to Belarus in such circumstances, a policy which amounted to collective expulsion. Given the authorities’ refusal to implement the Court’s interim measures, the Polish State had also failed to live up to its obligations under the Convention.

The ECtHR held, unanimously, that there had been: a violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights, a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) to the Convention, and a violation of Article 13 (right to an effective remedy) of the Convention, in conjunction with Article 3 and Article 4 of Protocol No. 4. It also held, unanimously, that Poland had failed to comply with its obligations under Article 34 (right to individual petition) of the Convention.

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