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09/03/2023
LV: The District Administrative Court upheld a Nigerian woman's appeal against an expulsion decision, citing the applicant's separation from her son as a violation of Article 3 of the European Convention on Human Rights, Article 3 of the Convention on the Rights of the Child and Article 5 of the Return Directive.

ECLI
ECLI:LV:ADRJRIT:2023:0309.A420285122.6.S
Input Provided By
EUAA IDS
Source
Other Source/Information
Type
Judgment
Relevant Legislative Provisions
Dublin Regulation III (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for IP); EU Charter of Fundamental Rights ; European Convention on Human Rights; Return Directive (Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals)
Reference
Latvia, District Administrative Court [Administratīvā rajona tiesa], A v Office of Citizenship and Migration Affairs of the Republic of Latvia, No. A42-00871-23/21, ECLI:LV:ADRJRIT:2023:0309.A420285122.6.S, 09 March 2023. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=3383
Case history
Other information
Abstract

On 16 July 2019, the applicant, a Nigerian national, applied to the Latvian State Border Guard for international protection on the basis of sexual orientation, citing the murder of the applicant's partner and father as a fear of threat to life. The application was rejected by the Office of Citizenship and Migration Affairs on 16 January 2020, and the applicant did not challenge the decision.


On 21 April 2022, the applicant requested international protection in Germany. Under the Dublin III Regulation, the applicant was transferred to Latvia where she reapplied for international protection. The Board decided not to examine the applicant's request, while the Administrative District Court denied the applicant's request to review the content of the applicant's repeated asylum claim. The office made an initial decision to remove the applicant from EU territory for expulsion to Nigeria, a third country from which she arrived, or another country in which she has a right to remain, imposing a two-year ban on Schengen territory. 


The applicant filed an appeal against the decision, which was denied by the Board as the applicant did not have a valid travel document, visa, or residency permit. The applicant refused to voluntarily leave Latvia, having previously arbitrarily fled the asylum seekers' accommodation centre, evading the return procedure. The board considered that the decision safeguards both legal orders in the State and the State's authority to manage foreign nationals on its territory. Moreover, it was held that there was no reason to assume that returning the applicant to Nigeria will endanger the applicant's life or health due to the current security situation, or subject the applicant to the risk of serious harm.


As the applicant was now expecting a child, the board considered the applicant and her unborn son's individual circumstances while determining whether they met the requirements for refugee or alternative status. The board, however, determined that pregnancy cannot be classified as a significant health condition. It also added that the applicant is a well-educated woman who is capable of taking care of herself. It was further noted that the applicant's conditions in Nigeria were likely to be less favourable than those in Latvia, but this did not amount to a breach of Article 3 of the European Convention on Human Rights.


The applicant filed an appeal before the District Administrative Court, claiming that she and her child will face physical, social, economic, and moral hardship as a result of her future child being born out of wedlock.


The District Administrative Court upheld the appeal since the applicant's individual circumstances had significantly changed as the son had been born and was now residing in Latvia as an asylum seeker. The court ruled that if the decision was upheld, the mother would be separated from her newborn baby, which constitutes cruel and inhuman treatment, violating Article 3 of the European Convention on Human Rights and Article 3 of the Convention on the Rights of the Child. The court further ruled that in imposing an entry ban, the best interests of the child, including the right to family life, in line with Article 3 of the Convention on the Rights of the Child and Article 5 of the Return Directive, must be taken into account. Given the facts of the case, the court concluded that the administrative decision should be annulled and the applicant's application should be granted. 


Country of Decision
Latvia
Court Name
LV: District Administrative Court [Administratīvā rajona tiesa]
Case Number
No. A42-00871-23/21
Date of Decision
09/03/2023
Country of Origin
Nigeria
Keywords
Dublin procedure
Gender based persecution
Gender identity / Gender expression / Sexual Orientation / SOGIESC
Minor / Best interests of the child
Nigeria
RETURN