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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).

16/05/2022
NL: The Council of State annulled Dublin transfer to Croatia for insufficient investigation of alleged risk of pushbacks and stated that inter-state principle of mutual trust can be confirmed through further investigations in the transfer Member State

The applicant, Algerian national applied for international protection in the Netherlands but on 30 March 2021, the State Secretary for Justice and Security decided not to examine the application because Croatia is responsible for examining it under the Dublin Regulation. The applicant contested the decision and alleged that a Dublin transfer to Croatia would result in a breach of Article 3 ECHR. The State Secretary has however relied on the principle of mutual trust between Member States when deciding on the transfer.

The applicant claimed before the Court of the Hague and further before the Council of State that the State Secretary did not address the risk for a third country national to be redirected from Croatia to a third country due to pushbacks and without having been able to make an application for international protection and go through an asylum procedure.

The Court of the Hague considered that third country nationals in Croatia do not face a real and serious risk of being treated in breach of the EU Charter, Article 4. Although it is not disputed Croatian practice of pushbacks at the border, the court relied on the AIDA report on Croatia (2020 Update) of May 2021 and considered where it was mentioned that Dublin applicants transferred to Croatia do not experience any problems in accessing the asylum procedure and reception conditions. According to the court of the Hague, the State Secretary has therefore rightly taken the position that he can still rely on the inter-state principle of the protection of legitimate expectations with regard to Dublin claimants for Croatia.

In the subsequent appeal, the Council of State addressed the question of whether the State Secretary has properly justified that he is right to apply the Dublin Regulation to Croatia on the basis of the principle of the inter-State protection of legitimate expectations and that the foreign national does not run a real risk of ending up in a situation contrary to Article 4 of the EU Charter and Article 3 of the ECHR when returning to Croatia, including not being subject to push back to a third country.

The Council of State stated that when a third country national argues, but reference to objective information, that the State Secretary can no longer rely on the principle of mutual trust, it is for the later to demonstrate in a resonated manner why it reaches a different conclusion based on the same objective information and it has also to justify why the systemic errors in the asylum procedure and/or reception system in the transfer State are not fundamental or those deficiencies do not reach the threshold of severity as the CJEU ruled in Abubacarr Jawo v Bundesrepublik Deutschland.

When the State Secretary can not properly justify the applicability of the principle of inter-state mutual trust and legitimate expectations, he is obliged to carry out a further investigation in the requested Member State (see the judgment of the ECtHR of 21 January 2011,  M.S.S. v Belgium and Greece). According to the Council of State, a further investigation in the requested Member State does not affect the principle of mutual trust but will confirm that the principle can still be relied on (CJEU, C.K. and Others v Republic of Slovenia (Republika Slovenija)).

The Council of State further concluded that the pushbacks in Croatia constitute a fundamental systemic error in that country's asylum procedure, which reaches the particularly high threshold of gravity. As for the consequences on Dublin procedure, the Council of State ruled that although the pushbacks at the external borders do not in themselves mean that Dublin applicants cannot be transferred to Croatia, there are concrete indications that the State Secretary can no longer assume that Croatia will comply with its international obligations with regard to the third country national. 

The Council of State concluded that the State Secretary should have carried out further investigation into the risk for transferred Dublin applicants to be deported by Croatia without treatment or during the examination of their asylum application. Considering the nature, extent and duration of the fundamental systemic error at issue and that it reaches the particularly high threshold of gravity, the absence of information on the situation of Dublin applicants after transfer to Croatia cannot be at the risk of the foreign national. Consequently, the State Secretary decision was annulled.

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16/05/2022
DE: The Federal Administrative Court rejected appeal on points of law in a secondary movement case concerning a young and healthy applicant who did not prove a lack of access to employment in Italy

The applicant submitted an appeal on points of law against a judgement of the High Administrative Court and claimed procedural violations because the lower court took a decision without an oral hearing, and his right to be heard was allegedly infringed. The applicant based his appeal on article 6 ECHR and 47 of the EU Charter.

The Federal Administrative Court rejected the appeal and found that the implementation of the simplified appeal procedure was not wrong. The applicant was granted international protection in Italy and the BAMF has rejected his application in Germany, ordering his return. He contested the decision and the BAMF considered that there were no impediments to the transfer because the applicant as a young, healthy and employable recognised beneficiary of protection was highly likely to be able to secure a minimum level of subsistence and to find employment in Italy. Before the High Administrative Court, the BAMF invoked that there was no need for further clarifications over the situation in Italy and also the applicant did not raise any specific request for evidence that would require an oral hearing.

The Federal Administrative Court considered that the lower court took into consideration the applicant’s arguments on the access to labour market in Italy even tough if did not find compelling reasons to cancel the transfer. The Federal Administrative Court also stated that no new oral hearing is necessary if the case does not raise questions of fact or law which cannot be adequately resolved on the basis of the file and the written observations of the parties, as mentioned in the ECtHR case law.

Moreover, the Federal Administrative Court considered that there was no further need to clarify on the threshold to find a risk of inhuman and degrading treatment since the CJEU clarified already in Ibrahim that a person entitled to protection is actually threatened with a situation of extreme material hardship, independent of his will and his personal decision, only after the unsuccessful exhaustion of all (legal) remedies to avert the violation of fundamental rights. Precisely, when the applicant is not vulnerable, but healthy and able-bodied person, the latter is expected to develop a high degree of initiative, to make all reasonable efforts to ensure their basic existential needs, including the submission of applications to authorities and courts, and to actively seek and avail themselves of the support of civil society organisations.

According to the Federal Administrative Court, the decisive factor is whether, in the event of their repatriation, the non-vulnerable persons concerned, despite all the efforts to be demanded of them and also when taking advantage of all the reasonable offers available, were likely to find themselves in a situation of extreme material hardship which did not allow them to satisfy their most elementary needs and which adversely affected their health or put them in a state of impoverishment.

Since the High Administrative Court did not establish a different legal principle from this, the Federal administrative Court considered that there is no point of divergence or of clarification.

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13/05/2022
FI: The Administrative Court confirmed the application of the exclusion clause for serious non-political crime committed outside Finland

The case concerned the application by the Finnish Immigration Service of the exclusion clause related to the committal of a serious non-political crime. In the appeal, the applicant argued that there shall eb an examination of whether there were mitigating or criminal liability-removing circumstances, such as the criteria of justification and forgiveness, which meant that the exclusion clause should not be applied. The Administrative Court noted that the applicant and his brother have been shot by the victim which fact could have been surprising and threatening to the applicant. However, after his family members fled the premises, the applicant went upstairs and came back armed, opened a fire assault towards the victim and seriously wounded the victim. In these circumstances, it can no longer be assumed that the victim posed an immediate threat to the applicant and his family members, but that his acts went beyond justified and necessary reaction in that situation.

The Administrative Court stated that there were reasonable grounds for suspecting that the applicant had committed a serious non-political crime outside Finland before he came to Finland as a refugee, and took into consideration the nature of the act, the instrument of the act, the injuries suffered by the victim, the consequences laid down in the applicant's home country and the criminal proceedings initiated, as well as the fact that the majority of the legal systems of the EU+ countries consider that an act such fulfilled the characteristics of a serious offence.

The Administrative Court held that, in view of the applicant’s act, there were no circumstances removing or mitigating the criminal liability of his act which would have led to a different assessment of the case. Consequently, the Finnish Immigration Service had to apply the exclusion clause in accordance with Section 87(2)(2)(2) of the Aliens Act.

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13/05/2022
FI: The Turku Administrative Court stated that the spouse did not have the right to appeal against the rejection of the subsequent application and the expulsion order of the applicant

The applicant has been refused international protection and a subsequent application was rejected as inadmissible. The FIS ordered the return to his country of origin was issued, jointly with a 2-year entry ban. The Turku Regional Administrative Court had to decide whether the spouse of the applicant had the right to appeal against the negative decision.

The Administrative Court mentioned that according to section 7 (1) of the Administrative Procedure Act, an appeal against an administrative decision may be lodged by the person to whom the decision is addressed or who’s right, obligation or interest is directly affected by the decision and whose right of appeal is separately provided by law. The right of appeal could not therefore be inferred solely from the indirect effects of the decision. However, the assessment of the direct effect of a decision always requires a case - by - case assessment of the quality of the case and the need for legal certainty.

The ECtHR ruled a judgment of 5 October 2000 in Maaouia v. France, that expulsion did not constitute a right or an obligation under Article 6 of the ECHR. Expulsion is a preventive administrative measure related to the management of entry into a country and therefore expulsion is not subject to the requirement of a fair trial under Article 6, although expulsion may have, inter alia, a significant effect on a person's private and family life.

The case concerned the rejection as inadmissible of a subsequent application and the issue of international protection concerned only the applicant. Following this decision, he was ordered to be deported and refused entry, these factors influencing the right to private a family life as provided by Article 8 ECHR. However, in line with the case law, a family gatherer living in Finland had the right of independent appeal in the case of a residence permit applied for on the basis of family ties and the availability of legal protection related to the protection of his family life. In such circumstances and taking into consideration the case-law of the ECtHR, the Administrative Court held that the expulsion and refusal of entry in connection with the subsequent application did not have such a direct effect on the spouse's right, obligation or interest to appeal. The Court concluded that the spouse did not have a right to appeal, and the complaint was rejected as inadmissible.

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13/05/2022
DE: The Federal Administrative Court rejects appeal on points of law in secondary movement case

The applicant had been granted international protection in Italy and has further applied for protection in Germany. The applicant contested that his asylum application was rejected, and the return ordered, and the High Administrative Court considered that the transfer to Italy was not possible due to the risk of a treatment contrary to Art 3 ECHR based on a lack of access to housing and employment.

The BAMF submitted an appeal on points of law claiming that the High Administrative Court failed to respect the duty to provide information or the obligation to dispute arising from the principle of persuasion.

The Federal Administrative Court rejected the appeal on points of law and stated that the BAMF did not raise any issue related to procedural aspects that would allow such an appeal. The Federal Administrative Court reiterated that  the result of the assessment of evidence cannot be criticised, but only a procedural issue on the way there. Whether the court ruled on a too narrow factual basis is, in principle, a question of assessment of facts and evidence attributable to substantive law, on which a procedural complaint cannot be based before the Federal Administrative Court. Exceptionally, a procedural violation is considered if the challenged judgment is based on incorrect or incomplete facts, which error was not identified in the present case. Moreover, the case does not raise an issue of fundamental importance.

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12/05/2022
DE: The Regional Administrative Sigmaringen referred questions to the CJEU on subsequent applications

The Regional Administrative Court Sigmaringen referred the following question for a preliminary ruling of the CJEU:

1.a. Is a national provision compatible with Article 33(2)(d) and Article 40(2) of Directive 2013/32/EU which considers a subsequent application to be admissible only if the factual or legal situation underlying the initial rejection decision has subsequently changed in favor of the applicant?

b. Does Article 33(2)(d) and Article 40(2) of Directive 2013/32/EU preclude a national provision which does not cover a decision of the Court of Justice of the European Union (in this case: in preliminary ruling proceedings under Article 267 TFEU) as a 'new element' or 'new circumstance' or 'new knowledge' if the decision does not find that a national provision is incompatible with EU law: but is limited to the interpretation of EU law? What are the conditions, if any, for a judgment of the Court of Justice of the European Union which merely interprets EU law to be taken into account as a 'new element' or 'new circumstance' or 'new knowledge'?

2. If Questions 1a and 1b are answered in the affirmative, are Article 33(2)(d) and Article 40(2) of Directive 2013/32/EU to be interpreted as meaning that a judgment of the Court of Justice of the European Union which has held that there is a strong presumption that the refusal of military service under the conditions laid down in Article 9(2)(e) of Directive 2011/95/EU has one of the five grounds listed in Article 10 of that directive is related to the fact that "new element" or "new circumstance" or "new knowledge" is to be taken into account?

3. a. Is Article 46(1)(a)(ii) of Directive 2013/32/EU to be interpreted as meaning that the judicial remedy against a decision of inadmissibility by the determining authority within the meaning of Article 33(2)(d) and Article 40(5) of Directive 2013/32/EU is limited to examining whether the determining authority fulfils the conditions for determining whether the subsequent application for asylum in accordance with Article 33(2)(d) and Article 40(2) and (5) of Directive 2013/32/ EU can be regarded as inadmissible, has correctly assumed?

b. If Question 3a is answered in the negative, is Article 46(1)(a)(ii) of Directive 2013/32/EU to be interpreted as meaning that the judicial remedy against a decision of inadmissibility also covers the examination of whether the conditions for granting international protection within the meaning of Article 2 (b) of Directive 2011/95/EU are satisfied if the General Court finds, after its own examination, that: that the conditions for rejecting the subsequent asylum application as inadmissible are not met?

c. If the answer to Question 3b is in the affirmative, does such a decision by the General Court presuppose that the applicant has previously been granted the special procedural guarantees provided for in the third sentence of Article 40(3) in conjunction with the rules in Chapter II of Directive 2013/32/EU? Can the court carry out this procedure itself or must it delegate it to the determining authority, if necessary, after the judicial dispute has been suspended? Can the applicant waive compliance with these procedural guarantees?

 

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11/05/2022
FI: The Supreme Administrative Court confirmed negative decision on family reunification due to failure to provide a valid travel document

The applicant, A, Ethiopian national, requested residence permit on the basis of family reunification with his cohabitation spouse B, who had a permanent residence permit issued on individual reasons. The FIS rejected the request by decision of 2 May 2019 and ordered the repatriation of A, considering that he did not meet the requirements as he did not present a valid travel document. The applicant also had a child and invoked the protection of family life and besty interest of the child as a potential derogation from the travel document requirement.

The Finnish Immigration Service has stated that there was nothing in the case to suggest that the travel document requirement should be waived. An applicant has the opportunity to obtain a passport in his or her home country at the latest if he or she cannot obtain a passport from Finland, and he or she can re-apply for a residence permit on the basis of family ties from his or her home country. Moreover, by another decision issued on the same day, the Finnish Immigration Service rejected the applicant's application for an alien's passport because the applicant has not presented the reasons under section 134 of the Aliens Act on the basis of which the alien passport could be issued.

The Supreme Administrative Court rejected the appeal, after having examined whether the aspects relating to the protection of family life and the interests of children were so weighty that they required a derogation from the requirement for the validity of the travel document.

The Court noted that there were no reasons beyond the control of the applicant and that could have prevented him to acquire a travel document from the State of nationality. The court noted that A had spent family life in Finland for several years and that the family included a child who had been granted refugee status for personal reasons, thus the whole family could not be required to return to their home country. However, the applicant’s stay in Finland was based on pending residence permit applications and no special circumstances had been put forward concerning the circumstances of the family which would require the second guardian of the children to be granted a residence permit despite the absence of a travel document.

The court underlined that A may re-apply for a residence permit after obtaining a travel document from his State of nationality. The refusal to issue a residence permit could not be considered unreasonable from the point of view of the protection of family life or the interests of children.

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06/05/2022
BE: The CALL annulled negative decision on visa for family reunification due to lack of reasoning on the particular vulnerability of the child and family life

The case concerned a request for visa on family reunification grounds submitted by the applicant at the embassy in Islamabad. The child has been granted refugee status in Belgium after request to join his father. The CALL rejected the visa on family reunification grounds as she did not fulfill the legal requirements for such a request. The CALL noted that the alleged family gatherer was no longer an unaccompanied minor in Belgium since he was taken care of by an adult, namely his father.

The applicant contested the decision and invoked Article 8 ECHR in order to claim that the negative decision would infringe her right to family life and the best interest of the child. The applicant also argued that the determining authority did not take into consideration the particular situation of her son, who suffers of trisomy 21and is particularly vulnerable.

The CALL annulled the contested decision for lack of proper reasoning on the possible breach of article 8 ECHR and for the lack of reasoning with regard to the particular vulnerability of the child, of which the determining authority was informed by letter of 19 November 2019.

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06/05/2022
FR: The Council of State interpreted the concept of imputed political opinions due to being employed in a state institution.

The applicant, an Afghan national, requested international protection in France due to alleged persecution based on political opinions, as he was a former employee of the Afghan Police. On 28 December 2018, the French Office for the Protection of Refugees and Stateless Persons (OFPRA) rejected the applicant's request for asylum. On appeal, on 14 October 2020, the National Court of Asylum (CNDA) allowed the request and recognised the applicant's refugee status. Upon appeal before the Council of State, the CNDA decision was annulled.

The Council of State noted that political opinions likely to give rise to the right to international protection, according to the recast Qualification Directive, can be regarded as resulting solely from being a member of a state institution when the institution makes such access conditional upon adhering to such opinions, or act on their sole basis, or fight exclusively all those who oppose them. In addition, refugee status is likely to be granted to an applicant who has a well-founded fear of suffering acts of persecution in the country of origin because of the past activities within the state institution, without being able to benefit from the effective protection of the national authorities, when, having regard to all the circumstances of the case relating to his individual situation, in particular the nature and level of the responsibilities he has exercised there, to the activities in which he took part, to the personal motivations which led him to commit within the state institution and to the perception that the actors of persecutions may have, a link can be established between these persecutions and political opinions attributed to him personally.

The Council noted that the CNDA, in recognising refugee status, based its reasoning in particular on the fact that, even if the applicant's commitment to the national Afghan police cannot in itself reflect the expression of a political conviction, political opinions favorable to the state authorities are necessarily imputed by the Taliban because of their fight against state authorities. Thus, the CNDA did not seek the existence of a link between the persecutions alleged by the applicant and the political opinions that the Taliban would attribute to him personally.

The Council considered that the CNDA erred in doing so, and thus, it allowed the appeal lodged by the OFPRA, annulled the contested decision and sent the case back to the CNDA.

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06/05/2022
FR: The Council of State annulled a CNDA judgment refusing subsidiary protection to a Syrian national and held that the CNDA did not analyse the situation in Syria.

The applicant, Syrian national, requested international protection in France due to the fear of persecution in the country of origin as the applicant had supplies gas to Syrian families in Damascus who opposed the regime. He was allegedly detained while supplying gas and subjected to ill-treatments. On 18 December 2019 the Office for the Protection of Refugees and Stateless Persons (OFPRA) rejected the request. The decision was confirmed by the National Court on Asylum (CNDA) on 11 September 2020, which considered that it was not sufficiently credible that the applicant was from Damascus or that the facts alleged were credible. The court further noted that the medical evidence provided did not show the connection with the facts alleged.

The Council of State held that the CNDA did not sufficiently motivate its decision to reject the request for subsidiary protection. The CNDA had used stereotypical phrases without assessing the degree of violence and the situation in Syria. The decision was annulled by the Council of State and the case sent back to the CNDA.

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