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

21/01/2022
IT: The Tribunal of Rome suspended an expulsion order on the basis of family links.

The Tribunal of Rome ruled in a case regarding an Albanese citizen who was issued an order of expulsion. The judge considered the family links of the applicant in the Italian territory, whose wife and two children under 18 years old are based in the country ruled to suspend the expulsion order during the pending judgment on family unity, consisting of a request for authorisation of stay of the father of a foreign child. The Tribunal noted that the family links could imply serious risks if the father was separated from his children and contradict the best interest of the child.

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21/01/2022
IT: The Regional Administrative Tribunal of Sicily ruled that access should be granted to ASGI and other organisations providing support to asylum applicants in the Hotspot of Lampedusa.

The appeal was filed by the Association for Juridical Studies on Immigration (ASGI) after requesting entrance into the Lampedusa Hotspot and being denied by the administration, based on the negative opinion of the Ministry of Interior. The opinion states that the entry into the Hotspot is limited to access for reasons linked to the correct administration of the structure, and this is granted by the presence of international organisations such as UNHCR, IOM and EASO and other organisations with specific mandates and projects. On appeal, ASGI stated that the procedures followed in the Hot Spots are based on SOP aimed at providing some general guidelines that have an organisational aim rather than a normative one. Access to the centres can only be limited for reasons of security and public order, and in any case, it can be limited but not denied completely.

The Regional Administrative Tribunal of Sicily noted that the right to access reception or other centres such as the Hotspot needs to be guaranteed mainly to ensure the right of the applicant for international protection to contact UNHCR or another trusted organisation at any stage of the asylum procedure. In this sense, it is not possible to doubt the role of ASGI as such an organisation as it has been registered since 16 September 2005 in the Registry of the entities and association carrying out activities in support of migrants. Additionally, the Tribunal considered that the access of the organisation could only be postponed if there were reasons of security and public order, and not completely denied. Therefore, the Tribunal accepted the appeal as well-founded.

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12/01/2022
FI: The Turku Administrative Court determined the law applicable for a request for reimbursement of a private legal assistant following legislative changes to the Legal Aid Act

According to Finlex:

The Court examined whether an hourly fee could be awarded to a new assistant in an international protection case on the basis of a claim made after the entry into force of the Act repealing section 17a of the Legal Aid Act (738/2021).

Pursuant to section 17 (1) of the Legal Aid Act, a reasonable fee is charged to a private assistant for the necessary measures based on the time spent on them and the loss of time due to necessary travel, as well as compensation for expenses. For the purpose of awarding the fee, the assistant shall provide a detailed explanation of the action taken and the costs incurred, unless it is unnecessary to provide such a statement.

Pursuant to section 17a (650/2016) of the Legal Aid Act, in a matter concerning international protection, a reasonable ad hoc fee is set for a private assistant for the performance of the assistant's duties. The Government Decree stipulates in more detail the amount of the relevant fee.

Section 17a of the Legal Aid Act has been repealed by the Act on the Repeal of Section 17a of the Legal Aid Act (738/2021), which entered into force on 1 August 2021. This means that, subject to the entry into force of Act 738/2021, the provisions of section 17 (1) of the Legal Aid Act shall also apply in the case of international protection when determining the remuneration of a private assistant.

Pursuant to the entry into force of Section 2 (2) of the Act on the Repeal of Section 17a of the Legal Aid Act, the provisions in force at the entry into force of this Act shall apply to the remuneration of a private assistant in an international protection case if the claim was made before the entry into force of this Act.

The Administrative Court held that the claims for the remuneration of the various assistants were separate claims for remuneration. The evaluation was carried out on a per-assistant basis. The decisive factor was therefore when each assistant had requested that his remuneration be fixed. As the first assistant's claim for remuneration had been made before the entry into force of the law repealing section 17a of the Legal Aid Act, his remuneration had to be established on a case-by-case basis pursuant to section 17a of the Legal Aid Act. The new assistant's claim for remuneration, on the other hand, had been made after the entry into force of the amending provision and his remuneration had therefore to be fixed on an hourly basis in application of section 17 (1) of the Legal Aid Act.

 

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12/01/2022
FI: The Turku Administrative Court determined the law applicable for a request for reimbursement of a private legal assistant following legislative changes to the Legal Aid Act

According to Finlex:

The Court examined whether an hourly fee could be awarded to an assistant in an international protection case after the entry into force of the Act repealing section 17a of the Legal Aid Act (738/2021), when the assistant had first claimed the relevant fee before entry into force of the law and again after the entry into force of the law on an hourly basis.

Pursuant to section 17 (1) of the Legal Aid Act, a reasonable fee is charged to a private assistant for the necessary measures based on the time spent on them and the loss of time due to necessary travel, as well as compensation for expenses. For the purpose of awarding the fee, the assistant shall provide a detailed explanation of the action taken and the costs incurred, unless it is unnecessary to provide such a statement.

Pursuant to section 17a (650/2016) of the Legal Aid Act, in a matter concerning international protection, a reasonable ad hoc fee is set for a private assistant for the performance of the assistant's duties. The Government Decree stipulated in more detail the amount of the relevant fee.

Section 17a of the Legal Aid Act has been repealed by the Act on the Repeal of Section 17a of the Legal Aid Act (738/2021), which entered into force on 1 August 2021. This means that, subject to the entry into force of Act 738/2021, the provisions of section 17 (1) of the Legal Aid Act shall also apply in the case of international protection when determining the remuneration of a private assistant.

Pursuant to the entry into force of Section 2 (2) of the Act on the Repeal of Section 17a of the Legal Aid Act, the provisions in force at the entry into force of this Act shall apply to the remuneration of a private assistant in an international protection case if the claim was made before the entry into force of this Act.

The Turku Administrative Court found that whether section 17 (1) of the Legal Aid Act or the repealed section 17a apply to the determination of the private assistant's remuneration is determined by the entry into force of the Act repealing section 17a of the Legal Aid Act, depending on when the claim was made.

The Administrative Court held that a private assistant submits his claim for remuneration only once and that the decisive date for the entry into force of the repealed law is therefore decisive for the interpretation of the provision. In this case, in a situation where a private assistant has submitted his or her claim for remuneration during the validity of section 17a of the Legal Aid Act, ie before the amendment enters into force on 1 August 2021, the amendment does not retroactively change the basis for determining his or her remuneration.

The Court held that the fact that, after the entry into force of the Act, a private assistant again requires the remuneration to be fixed on an hourly basis on the basis of section 17 (1) of the Legal Aid Act does not change the provisions under which his remuneration is fixed. As the assistant had claimed reimbursement of legal costs in an appeal filed in 2019 under the Legal Aid Act, ie before the entry into force of the Act repealing Section 17a of the Legal Aid Act, the fee had to be established on a case-by-case basis pursuant to Section 17a of the Legal Aid Act.

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10/01/2022
BE: The CALL overturned negative decision and found the stateless applicant justified a fear of persecution in Saudi Arabia; refugee status was granted

The applicant, of Palestinian origins, Arab ethnicity and Muslim, has applied for international protection and alleged to have been born in Saudi Arabia where he lived till he travelled to Egypt for studies. He encountered issues in Egypt as he was searched for at his grand parents place, and detained together with other 50 persons of Palestinian origins. The applicant invoked that he further returned to Saudi Arabia and it was difficult to find a job and to live since he was required to provide support of guarantor to reside there. His application for asylum was rejected by the CGRS which assessed that the applicant had no fear of persecution upon return and that the requirements for international protection have not been met. The applicant appealed against the negative decision and argued that the determining authority has insufficiently reasoned over his fear of persecution if returned to Saudi Arabia.

The CALL examined the case and relied on multiple COI reports emerging from different sources on the situation of Palestinians in Egypt and Saudi Arabia. It found that the application shall be examined with regard to the country of habitual residence, in view of the fact that the applicant is stateless, precisely with regard to Saudi Arabia as unique country of residence. On the issue of fear of persecution, the CALL held that the applicant has adduced evidence on a cumulative measures directed against him , since being a child, that would constitute persecution, including discrimination and violence due to his origins. The CALL considered that discriminations and violence which were presented with sufficient precision and credibility, can be assimilated to a form of persecution.

The CALL further stated that once an applicant has proved previous acts of persecution, it is an indication that he can risk to be victim of in the future. Thus, the CALL considered that there is no indication not to believe that the applicant would be at risk of persecution in Saudi Arabia. The CALL held that the fear of persecution of the applicant was well established and decided to grant him refugee status.

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10/01/2022
SE: The Migration Court of Appeal confirmed decision to annul detention order assessed as not compatible with the Article 8 (3) e of the Reception Directive

JB, the applicant, was rejected asylum in November 2015 and an expulsion order was issued against in December 2017, the order became final on 9 April 2019. In May 2019, the case was submitted for enforcement of expulsion and in March 2021 the applicant was detained based on a risk that he would abscond and in preparation to implement the expulsion. In April 2021, the applicant invoked impediments to enforcement as he applied and was granted a re-examination of his application for residence and work permit. The applicant was detained again based on the Aliens Act, contested the detention decision and the Administrative Court in Stockholm allowed the appeal and overturned the detention decision. The Swedish Migration Agency appealed against and argued that since the application for residence permit has not been examined by final decision, the applicant is covered by Article 3(1) of the Receiving Directive. The Swedish Migration Agency alleged that the Administrative Migration Court has wrongly stated that the Reception Directive does not apply when a new examination has been granted under Chapter 12, Section 19 of the Aliens Act.

The Migration Court of Appeal firstly analysed whether the Aliens Act is a basis to detain a person who has been granted a new case examination and if the EU law provides for a decision on detention. The Court found that a new examination of a residence permit constitutes a temporary impediment to enforcement and that it was a question of preparing or implementing the execution of a deportation decision.

The Migration Court of Appeal further stated that the application for asylum had been previously rejected and there was a risk of absconding and therefore a reason for detention under the Aliens Act. However, the Court held that the provisions of the Reception Directive were applicable to JB and that the conditions for detention provided by Article 8 (3) (e) have to be met. It noted that an applicant can only be detained if it is necessary for the protection of national security or public order, which must be assessed on an individual basis. The applicant had previously been charged with theft and minor drug offences, which the Court determined could not be seen as a real and sufficiently serious threat nor could his personal behaviour constitute a real and current risk to public order. Consequently, the Migration Court of Appeal held that there were no reasons to maintain the applicant in detention under the Article 8 (3) of the Reception Conditions Directive, or under the Aliens Act. The appeal of the Swedish Migration Agency was rejected.

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07/01/2022
CZ: The Supreme Administrative Court ruled that recognition of stateless person status does not grant a permanent residence card and the same rights that are granted with refugee status.

The case concerned an applicant who was granted the status of stateless person but was not issued with a permanent residence card. The applicant appealed the decision and took the view that, since he resides in the territory in accordance with the Asylum Act, his application should be regarded in the same way as an applicant for international protection, and therefore is entitled to remain in the territory and to reside there permanently. The applicant referred to the similarity between refugee status and stateless person status, including in international law, and therefore he should be entitled to an official residence permit card under the same conditions as a refugee.

The Supreme Administrative Court noted that the Convention Relating to the Status of Stateless Persons does not establish an entitlement to a certain residence status, but that UNHCR recommends granting stateless persons a residence permit valid for at least two years. This is however a recommendation, not a legal provision. In addition, the Supreme Administrative Court agreed with the Prague City Court that in the case of stateless persons, there is no element of the risk of persecution, and therefore the same high form of protection as awarded to refugees was not necessary.

In addition, Article 7(1) of the Convention obliges states to accord stateless persons the same treatment as that accorded to aliens in general, unless the Convention contains more favourable provisions. Consequently, the Court did not uphold the objection that the Act on the Residence of Foreign Nationals does not guarantee sufficient protection for stateless persons and that the procedure leading to the issue of the visa in question does not ensure a minimum standard of aliens.

The Court added that the fact that the applicant was considered as an applicant for international protection during the procedure for applying for the status of stateless person was not relevant for the legal assessment of the applicant’s situation at the end of the procedure. The reason why the applicant’s application was dealt with in accordance Asylum Act is purely practical, in that it was chosen to use that procedure as it was not feasible to create a special procedure in view of the small number of such applications. However, this does not automatically mean that the rights awarded during the procedure will continue to be awarded after the end of it.

Furthermore, stateless people are regarded as foreign nationals under the Act on the Residence of Foreign Nationals, unlike applicants for international protection and persons granted asylum or subsidiary protection, for which an exception is made. Therefore, when dealing with the residence status of stateless persons, it is necessary to proceed in accordance with the Act on the Residence of Foreign Nationals and not in accordance with the Asylum Act. The Supreme Administrative Court dismissed the appeal as unfounded.

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07/01/2022
CZ: The Regional Court of Brno referred the case for further assessment of the medical care available in the country of origin for the applicant's condition.

The applicant is a Ukrainian applicant who was born in the Czech Republic to Ukrainian parents without permanent residence status. He was born with serious health problems and was not covered by the public health insurance system nor was able to get a private insurance as the request was refused. Therefore, he received expensive healthcare bills and has a debt for medical care which his parents are seeking to repay. The application for international protection was made on grounds of his health status and the applicant deems that in this case the fact that Ukraine is considered a safe country of origin does not matter as it is irrelevant to the grounds of his application. He pointed to similar case law with regards to other countries of origin which were not considered safe and in which the requests for protection were successful. The Asylum and Migration Policy Department failed to take into account the danger in discontinuing the treatment and the fact that he would not be entitled to free healthcare in Ukraine.

The Court considered that the Asylum and Migration Policy Department did not consider the grounds on which the application was made, and notes that the application cannot be rejected as manifestly unfounded, without those grounds being regarded as unfounded. Additionally, the Court agreed with the applicant that further assessment of previous case law was required in order to assess the case, as well as further details on the healthcare that would be available in Ukraine for the applicant’s specific medical conditions. The Court ruled to accept the appeal as well founded and referred the case back to the Asylum and Migration Policy Department for further assessment.

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07/01/2022
CZ: The Regional Court of Brno considered that the applicant should receive humanitarian protection due to the situation in Venezuela and referred the case for further assessment.

The applicant is a national of Venezuela who was denied international protection and appealed the decision on grounds that the Asylum and Migration Policy Department did not correctly assess the situation in Venezuela and that there was a humanitarian crisis in the country. The applicant argued that in Venezuela she would not have the right to a dignified life and basic human needs nor the right to subsistence because of the degrading and inhumane situation that the government is creating through economic devastation, social crisis and lack of freedom. The applicant argued that the Asylum and Migration Policy Department did not sufficiently justify why it does not consider the situation in Venezuela to be a humanitarian crisis.

The Regional Court considered COI reports on the situation in Venezuela and noted that it has considerably worsened since the applicant left the country and it should be considered a humanitarian crisis. However, it noted that this does not constitute grounds for refugee status or subsidiary protection, as the applicant is not at risk of persecution upon return. The Court considered that reports from UNHCR and other institutions point at the seriousness of the situation in Venezuela and call from solutions different from international protection for Venezuelan citizens. Therefore, the Court considered the appeal well founded in relation to humanitarian protection and referred the case back to the Asylum and Migration Policy Department for further assessment taking into account the cited COI evidence.

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07/01/2022
FI: The Supreme Administrative Court overturned negative decisions and granted asylum for an applicant risking persecution by local authorities in Ingushetia and in the absence of internal flight alternative

The applicant applied for asylum and invoked a well-founded fear of persecution if returned to Ingushetia. The Finnish Immigration Service (FIS) considered that the applicant risked being persecuted by the local authorities of Ingushetia within the meaning of Article 87 (1) of the Aliens Act but did not grant him asylum because t was assessed that there was an internal flight alternative in Moscow. The Administrative Court dismissed the appeal.

The Supreme Administrative Court mentioned that in the assessment of the internal flight alternative it shall be first looked whether, in addition to Ingushetia, the applicant has a well-founded fear of being persecuted or is in real danger of suffering serious harm there, with due regard to the general circumstances prevailing in that part of the country of origin as well as the personal circumstances of the applicant. For this purpose, the Supreme Administrative Court considered that accurate and up-to-date country of origin information must be obtained from relevant sources.

The courts and also FIS noted that A was not in danger of persecution by Russian special forces, but by the local authority in Ingushetia, thus the possibility of internal escape had to be assessed on that basis.

The Supreme Administrative Court ruled that when considering the circumstances of the country of origin, it had to be ascertained whether the Ingushetian authorities had powers or possibilities outside the Republic of Ingushetia which allowed the Ingushetian authorities to persecute A also in the Moscow area as well. The Supreme Administrative Court stated that If such powers or possibilities exist, it should be ascertained whether information is available to assess the likelihood that the persecuting authority will exercise this possibility.  Moreover, a risk analysis shall be carried out weighing the relevant information obtained or the absence of such information in order to consider the possibility of internal flight as a whole.

It was noted that lower court and FIS conducted the examination of the risk of persecution of Mr A. in Moscow, in particular by assessing the current nature of his political activities and the degree of profiling resulting therefrom. Neither decision included country of origin information or mentions on absence of information on whether and to what extent the Ingushetic authorities had exercised such an opportunity against the Ingushetian authorities in Moscow. 

The Supreme Administrative Court considered that FIS and the lower court did not conduct a proper risk analysis of the risk of persecution of A by the Ingushetian authorities in Moscow and overturned the contested decisions.

The Supreme Administrative Court assessed the general circumstances of the country of origin and the personal circumstances of the applicant and concluded that he did not have the possibility of internal flight alternative to Moscow within the meaning of section 88 e of the Aliens Act. The applicant was granted asylum. 

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