The applicant is a national of Mali, from Kayes region, who requested international protection due to the fear of persecution and violence to which he was subjected in his village due to his sexual orientation. His request was rejected as he was not deemed credible. The Venice Tribunal rejected his appeal and he further appealed before the Supreme Court.
The Supreme Court allowed the appeal and sent the case back to the Venice Tribunal. The court confirmed the jurisprudential orientation regarding the correct assessment of the credibility of asylum applicants, especially in cases of sexual orientation. The court reiterated that the assessment of credibility cannot be based on stereotypical notions associated with homosexuality and, in particular, on the failure to answer stereotypical questions on homosexuality. In addition, the court also noted that the lower court did not verify the applicant’s statements in the light of specific country of origin information intended to clarify the condition of homosexuals in the country of origin and the level of acceptance or non-acceptance in the country.
The applicant is a national of Nigeria who requested international protection in Italy due to the fear of persecution from his uncle. The applicant claimed that after te death of his father, his uncle tried to obtain the land left by his father and to do so he sent his bodyguards to detain and kill the applicant. He managed to escape and arrived in Italy via Niger and Lybia.
The applicant's request for international protection or humanitarian protection was rejected. His appeal was also rejected by the court and he further appealed before the Supreme Court.
The Court of Cassation noted the complete absence of the assessment regarding the integration of the applicant in Italy. It held that such a comparative assessment between the applicant's current situation in Italy, of his level of integration, and the living conditions in the country of origin is necessary. In this specific case, the Supreme Court valued the high level of integration achieved by the applicant, which the lower court erroneously did not take into consideration.
The applicant is an Afghan national from the province of Baghlān. He requested international protection in France due to an alleged fear of threats from the Taliban movement which led him to leave his country. His request was rejected by the OFPRA and the applicant appealed.
The CNDA allowed the appeal and provided subsidiary protection. The CNDA did not find the applicant's explanations as to the threats he allegedly received from the Taliban movement to be convincing. However, based on the publicly available reports, it concluded that due to the strategic nature of its geographical location, the Baghlān province is the scene of violent fighting having a significant impact on the civilian population. It further noted that the growing intensity of the fighting, in the current context of US withdrawal and intensification of the Taliban offensive, the current situation had reached the level of indiscriminate violence of exceptional intensity. It held that when the violence generated by the armed conflict reaches such a level, the granting of subsidiary protection is justified by the risks against life or the person due to the mere presence of the person concerned in the territory or region concerned, without being necessary to retain particular individual factors. The applicant, whose status as a civilian was not contested, was thus granted the benefit of this subsidiary protection.
The court cited EASO report Country Guidance: Afghanistan, December 2020 and June 2021.
The applicant, a Nigerian woman from Lagos, requested international protection in France, alleging that she had left from a prostitution network and that if she would return to Nigeria she would not receive protection from the authorities. She alleged that her family in Nigeria were being threatened because she had stopped paying her debt to the prostitution network, to which she had been enrolled under false pretenses that she would come to Europe to continue her studies. The OFPRA rejected the request and the applicant appealed.
The CNDA allowed the appeal and provided subsidiary protection to the applicant. The court verified the effectiveness of the withdrawal of the applicant from the prostitution network and the resulting fears in the event of her return to Nigeria. It determined that there was a proven risk considering that the public sources showed that the trafficking practiced in Lagos cannot be regarded as affecting, by its scale, its methods and the means of control over its victims, a level comparable to that prevailing in Edo and in other Southern states of Nigeria. The absence of such characteristics in Lagos led the court to consider that the applicant could not be regarded as belonging to this social group. On the other hand, the court concluded that subsidiary protection should be granted to the applicant as she would be exposed to a risk due to the fact that she left the prostitution network.
The court cited the EASO report Nigeria. Trafficking in Human Beings, April 2021.
The applicant, a national of Afghanistan of Hazara ethnicity, requested international protection in France due to the fear of persecution based on wthnic origin. His request was rejected on 12 November 2018 by the Office for the Protection of Refugees and Stateless Persons (OFPRA) and the National Court of Asylum (CNDA) rejected the appeals lodged by the applicant.
On appeal before the Council of State it was decided that the CNDA correctly qualified the facts of the case and rejected the appeal lodged by the applicant. The Council noted that the CNDA correctly rejected the request for refugee status as there was no evidence to support the personal fear of persecution based on his ethnic origin. The CNDA had correctly relied on reports of the UN Assistance Mission in Afghanistan (UNAMA). Regarding the applicant's request for subsidiary protection, the Council analysed the situation in Kabul, which the applicant would need to transit, and in the province of Herat, where he would have to return. The Council noted that the CNDA had based its conclusion on reports of the UN, EASO and international organisations. This evidence showed that the number of victims and security incidents had decreased, while admitting the volatile nature of the situation, and the return to the country of many people. The CNDA also noted also noted that in some provinces there was no open fighting or persistent or uninterrupted clashes, but incidents whose scale and intensity of violence are much less than in the provinces where open fighting took place. In general, the security situation was marked by strong regional differences in terms of level or extent of the violence and impact of the conflict raging in the country. Regarding the situation in Kabul, the court noted in particular the strong demographic and urban growth, the absence of open fighting and the fact that civilians are not the main targets of insurgent groups in Kabul, as well as the relative decrease in the number of victims and the flow of people seeking refuge there.
As for the situation in Herat, the Council noted that the CNDA took into account the number of victims, incidents and people displaced or returning to the province as well as the methods employed, the intensity of the fighting and the preferred targets. The Council concluded that while the security situation prevailing in these different areas resulted in a significant level of violence, it was not characterized by a level of violence likely to extend to people without consideration of their personal situation.
Thus, the CNDA had not incorrectly characterize the facts of the case.
The applicant is a Palestinian from the Gaza Strip who requested international protection in the Netherlands as he claimed to be in an unsafe situation. By decision of 6 March 2020, the State Secretary for Justice and Security rejected the application on the basis of Article 1(D) of the Refugee Convention. By decision of 21 August 2020, the court declared the appeal lodged by the applicant well-founded, annulled that decision and instructed the State Secretary to take a new decision on the application. The court considered that UNRWA is no longer able to provide living conditions in the Gaza Strip in accordance with its mission. The State Secretary appealed against the decision.
The Council of State held that the appeal is well-founded and that the State Secretary must take a new decision. The Council held that the State Secretary did not properly substantiate that UNRWA is able to provide living conditions in the Gaza Strip that are consistent with its mission, so that the ground for exclusion of Article 12 (1)(a) of the Qualification Directive applies to the third country national. The Council noted that the mission of UNRWA is to protect Palestinian refugees, but also to serve their well-being and development, thus encompasses more than protecting Palestinian refugees from treatment contrary to Article 3 of the ECHR. In the decision and at the hearing, the State Secretary did not provide any insight into the standard it uses to answer the question of the extent to which UNRWA is able to carry out its mission. The Council also noted that when taking a new decision, the State Secretary will have to take into account current developments in the Gaza Strip, including the recent resurgence of hostilities between Israel and Hamas and reports that the United States will resume some of its funding from UNRWA.
According to the legal summary of the court:
"The applicant is a former journalist for a Turkish daily newspaper, who entered Bulgaria illegally and was arrested on 14 October 2016 by the Bulgarian border police. He alleged that the Bulgarian authorities had exposed him to risks of ill-treatment when returning him to Turkey, in view of his personal circumstances against the background of the prevailing conditions in the aftermath of the attempted coup, and in particular the measures taken against journalists in connection with the state of emergency. [...] The applicant had been part of a group of people wishing to transit via Bulgaria and head towards Germany. He had therefore not initially intended to seek asylum in Bulgaria. However, he appeared to have adopted a change of strategy in announcing, upon his arrest by the Bulgarian police and his detention at the border police station, that he wished to apply for protection in Bulgaria. He stated that he had subsequently reiterated that wish orally on each occasion when a new team of police officers took over, and also on his arrival at the reception centre for foreigners. He added that he had formalised his asylum request in a written document he had handed to the border police, without being given a copy of it. The Government’s account contradicted all these allegations.
No decisive weight should be attached to the absence of an explicit application for protection to the relevant authorities in the written record of the applicant’s statements to the Bulgarian authorities, bearing in mind that no interpreter had been present to ensure that all his statements were properly noted down. During the applicant’s detention, several documents had been drawn up in a fairly brief period, and the Court was not satisfied that he had understood their contents or had been given the time to familiarise himself with them, even with the help of officers who spoke Turkish or English. The assistance of an interpreter in such circumstances would have been essential, in particular for the applicant to be able to understand the contents of the documents he had been required to sign, as well as for the record of all his statements to the domestic authorities. Moreover, the internal inquiry conducted by a panel appointed by the Ministry of Internal Affairs did not appear to have uncovered any evidence in line with the statements given by the police officers involved in the applicant’s removal. The removal had thus taken place in an extremely short space of time, in breach of domestic law. However, the Court did not find it necessary to determine whether there had been a written document in which the applicant had made an explicit application for protection. The applicant could have been in a state of distress when giving his explanations to the Bulgarian authorities, having spent many hours travelling inside a trailer attached to a heavy goods vehicle. In any event, however, the documents submitted by the Government were sufficient for the analysis outlined below.
The applicant’s account dated 14 October 2016 and written in Bulgarian contained the following passage: “I was working as a journalist in the town of Bozova. After the attempted coup, I was dismissed from the newspaper. I changed address and found out that the police had been looking for me at my former address.” Irrespective of whether the applicant had submitted a formal application for protection, and in view of the linguistic obstacles and the lack of involvement of a lawyer during the events in issue, the question arose as to whether the Bulgarian authorities could have interpreted those statements as reflecting the fears which the applicant claimed to have conveyed to them. A wish to apply for asylum did not have to be expressed in any particular form. The decisive factor was the fear expressed at the prospect of returning to a country. Similarly, the Committee of Ministers of the Council of Europe had recommended that member States provide border officers with training to enable them to detect and understand asylum requests, even in cases where asylum seekers were not in a position to clearly communicate their intention to seek asylum. In the light of the above factors, although the explanations given by the applicant, as noted in the document produced, did not contain the word “asylum”, they stated that he was a Turkish journalist who had been dismissed from his job in the context of the state of emergency introduced in Turkey following the coup attempt, and made it clear that he was afraid of being sought by the prosecuting authorities. Moreover, the Turkish consulate had indicated that the applicant and his Turkish fellow passengers were thought to have been involved in the coup attempt. Press releases and opinions issued by international observers, including comments by the Council of Europe Commissioner for Human Rights, in the three months leading up to the events in the applicant’s case had raised serious concerns about the implementation of the measures adopted in connection with the state of emergency, including those targeting journalists. Various reports had criticised the use of violence, reprisals and arbitrary imprisonment against journalists. However, during the detention and subsequent removal of the applicant and his fellow citizens, the authorities had not made any effort to examine the relevant aspects of the personal account given by the applicant on 14 October 2016 in the light of the situation as outlined above.
In that respect, the record of the applicant’s explanations drawn up on 14 October 2016, read in the light of the other aspects described above, were sufficient, for the purposes of Article 3, to conclude that he had expressed his fears in substance to the Bulgarian border police authorities before being returned to Turkey. [...] Neither the border police officers who had obtained the above-mentioned account from the applicant and noted it down in Bulgarian before reporting the matter to their superiors, nor the regional director of the border police, who had imposed the coercive measure of “forcible return to the border of the Republic of Bulgaria”, nor the National Centre for Combating Illegal Migration, nor the director of the Migration Department of the Ministry of Internal Affairs, who had ordered the applicant’s removal, had found that the explanations provided by the applicant amounted to an application for protection. No proceedings had been instituted with the authorities responsible for international protection. Given that, as shown above, the Bulgarian authorities had had sufficient information to indicate that the applicant could have had genuine concerns from the standpoint of Article 3, the Court was surprised at the blatant failure to examine his particular situation. It also had to be acknowledged that, as far as procedural guarantees were concerned, the applicant had neither been provided with the assistance of an interpreter or translator, nor with information about his rights as an asylum seeker, including the relevant procedures. The Court was therefore unable to conclude that in the present case the Bulgarian authorities had fulfilled their requisite duty of cooperation in protection procedures.
Likewise, the applicant had not been granted access to a lawyer or a representative of specialist organisations that would have helped him assess whether his circumstances entitled him to international protection. The material in the case file also indicated that the Bulgarian Ombudsman had not been consulted for the purpose of supervising the removal of the foreign nationals in question, contrary to the express legal requirement to that effect. Moreover, there had been other failings in the conduct of the domestic proceedings: for example, two versions of the declaration on the information about the applicant’s rights had been drawn up, and the order for the applicant’s admission to the reception centre for foreign nationals had been issued belatedly and had been sent by email to the centre while the applicant’s transfer to the border was already under way. The Government had not explained why the order contained an annotation to the effect that the applicant had refused to sign it, whereas, contrary to the explanations provided, it was apparent that the document could not physically have been handed to him. Such failings, in the Court’s view, reflected the extreme haste with which the applicant had been removed, besides the fact that his removal had been in breach of the rules of domestic law. As a result of such haste and the failure to comply with the relevant domestic procedures, which had nevertheless been designed to offer protection against the prospect of rapid removal without an examination of individual circumstances, the applicant had been deprived in practice of an assessment of the risk he allegedly faced in the event of his return. Similarly, the removal order had been implemented immediately without the applicant being given the chance to understand its contents, and as a result he had been deprived of the opportunity available under domestic law to apply to the courts for a stay of execution of the order. Accordingly, the haste with which the removal order had been implemented – within 24 hours of the applicant’s arrest at the border between Bulgaria and Romania – had had the consequence of rendering the available remedies ineffective in practice and therefore inaccessible. That being so, the applicant had been removed to Turkey, his country of origin from which he had fled, without a prior examination of the risks he faced from the standpoint of Article 3 of the Convention and hence of his application for international protection.
In the light of the foregoing, the applicant could not be held responsible for failing to have recourse to the relevant procedures. Despite the fact that he had expressed fears about the ill-treatment he risked facing in the event of being returned to Turkey, the Bulgarian authorities had not examined his application for international protection.
Conclusion: violation (unanimously)."
According to the Court's press release:
"The case concerned the return to Morocco of an applicant who claimed to be at risk of treatment contrary to Article 3 on account of his Sahrawi origins and his activism in support of the Sahrawi cause. In general terms, the Court found that Moroccan nationals who were activists for Western Saharan independence and the Sahrawi cause constituted a group at particular risk. In this specific instance, in the light of all the circumstances of the case, the Court agreed with the conclusion reached by the French Office for the Protection of Refugees and Stateless Persons (OFPRA), the National Asylum Court (CNDA) and the Paris and Melun Administrative Courts, all of which had given properly reasoned decisions, in view of the lack of specific information in the file substantiating the applicant’s alleged fears stemming from his involvement with the Sahrawi cause and from the Moroccan authorities’ efforts to find and prosecute him. The Court also noted that the applicant had not produced any document or evidence in the proceedings before it besides those he had previously produced before the domestic authorities. The Court inferred from this that the evidence in the file did not provide substantial grounds for believing that the applicant’s return to Morocco had placed him at real risk of treatment contrary to Article 3 of the Convention. As to the effectiveness of the remedies made available to the applicant under domestic law, the Court noted that he had on four occasions exercised a remedy that suspended the enforcement of the order for his return to Morocco. In the context of these different remedies he had given evidence on four occasions and had been given an opportunity, despite the short deadlines, to present his claims in an effective manner by virtue of the safeguards afforded to him (assistance of an interpreter, support from an approved association, appointment of a legal-aid lawyer). After assessing the proceedings as a whole, the Court concluded that the remedies exercised by the applicant, taken together, had been effective in the particular circumstances of this case. There had therefore been no violation of Article 13 read in conjunction with Article 3 of the Convention."
The applicants are two nationals of Mali, a mother and her daughter, which was four months old at the time of the facts. The first applicant had arrived in France via Italy, after having fled her country of origin due to the fear of being subjected to FGM and forcibly married. After refusing to board a flight to Italy, they were placed in administrative detention in Mesnil-Amelot Administrative Detention Centre No 2.
The ECtHR found a violation of Article 3 of the European Convention, considering that the detention of a four months’ old minor for 11 days, and whose detention ended only due to the interim measure allowed by the court, was excessive and went beyond the severity threshold under Article 3. due to the ill treatment of the applicants who were held in inadequate conditions and considering the age of the second applicant. A violation of Article 3 was also found in regard to the first applicant.
In addition, the court also found a violation of Article 5 (1) and (4) of the Convention as the national authorities had not fact verified that the initial detention was a measure of last resort for which there was no other alternative. None of the courts had taken into account the minority of the second applicant.
The International Commission of Jurists (ICJ) and the European Council for Refugees and Exiles (ECRE) registered a complaint with the European Committee of Social Rights on 30 November 2018. They alleged that serious systemic flaws in Greek law, policy and practice deprived unaccompanied migrant children in Greece (on the mainland and on the islands of Lesvos, Kos, Samos, Chios and Leros) and accompanied migrant children on the Greek islands of the rights provided in the European Social Charter, Articles 31§§ 1 and 2 (right to housing), 17§1 (right of children and young persons to social, legal and economic protection), 16 (right of the family to social, legal and economic protection), 7§10 (right of children and young persons to protection), 11§§1 and 3 (right to protection of health), 13 (right to social and medical assistance) and 17§2 (right of children and young persons to education). They made a request for immediate measures.
With regard to the right to housing, the committee concluded that there had been a violation of Article 31§1 due to "the failure to provide adequate accommodation to refugee and asylum-seeking children on the islands" and "the the lack of sufficient long-term accommodation for unaccompanied refugee and asylum-seeking children on the mainland." There had also been a violation of Article 31§2 due to "the inappropriate accommodation of accompanied and unaccompanied migrant children on the islands" and "the lack of provision of a shelter to unaccompanied migrant children on the mainland.
Regarding the right to social, legal and economic protection, the committee concluded that there had been a violation of Article 17§1 due to "the inadequate accommodation situation of accompanied and unaccompanied migrant children," "the lack of an effective guardianship system for unaccompanied and separated migrant children" and "the detention of unaccompanied migrant children under the “protective custody” scheme".
The committee also found a violation of Article 7§10 "due to the failure to take the necessary measures to guarantee accompanied and unaccompanied migrant children the special protection against physical and moral dangers," of Article 17§2 "due to the lack of access to education for accompanied and unaccompanied migrant children on the islands" and a violation of Article 11§§1 and 3 due to "the failure to provide appropriate accommodation and sufficient health care to accompanied and unaccompanied migrant children on the islands" and "the failure to provide appropriate shelter to unaccompanied migrant children on the mainland."
Lastly, the committee concluded that there was no violation of Article 13§1 of the Charter with regard to the provision of food.