EDAL case summaries
Detention of asylum seekers should only be permitted under the conditions prescribed by the law. The detention and deportation orders should always provide sufficient legal justification including the objective facts leading to the administrative authorities’ decision.
The decision of the Administrative Court of Düsseldorf prohibits a Dublin transfer of an asylum seeker from Germany to Greece stating that there are substantial grounds for believing that systemic flaws in the asylum procedure and reception conditions in Greece could put the applicant at risk of being subjected to inhuman or degrading treatment, in violation of Article 4 of the Charter of Fundamental Rights of the European Union.
When a Dublin transfer does not take place within the six-month time limit prescribed in the Dublin III Regulation, responsibility for examining the application for international protection is automatically shifted to the Member State that requested the Dublin transfer. Moreover, the Court extends the scope of the right to an effective remedy provided in the Dublin III Regulation, specifying that an applicant for international protection can challenge a Dublin transfer before a national court by invoking the expiry of the prescribed six-month time limit.
In countries where there is a high prevalence of female genital mutilation (FGM), as in Nigeria, non-excised persons can be considered as having a well-founded fear of persecution for reasons of membership of a particular social group within the meaning of Article 1A(2) of 1951 Refugee Convention. Refugee status can be granted where there is a considerable risk of excision and insufficient protection against this threat.
The competent authority has to respect as legally binding a court order that determines a certain date of birth and thereby the minority of an applicant. This is also the case if the applicant himself indicates another (earlier) date of birth.
The personal interview of a minor without his legal representative constitutes a significant procedural violation. The facts are presumed to not be ascertained. The competent authority has to ascertain the facts and circumstances once again.
Sending countries are under the obligation not to transfer any individual to another country if any reasonable doubt regarding systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State arises. The mere assumption that the country will comply with its obligations under international and European law is not sufficient and the sending country is under the obligation to comply with the precautionary principle and not allow the transfer.
Kabul cannot be considered as a reasonable internal flight alternative for the complainant due to the lack of a sustainable social network for him there and no other particular factors which would enable the applicant's removal . Therefore the complainant does not meet the requirements for a removal to Afghanistan.
The appellant claimed that the Tribunals in their determinations had failed to give adequate reasons for their conclusions, in particular that the appellant had not demonstrated well-founded fear. The Court considered the grounds for this claim and found that since we should ‘avoid a requirement of perfection’ (para 26) they were not sufficient to establish that the tribunals had erred, nor that the claimant was at risk of persecution.
The continued and exclusive control of contracting State's authorities over individuals creates, at least, a de facto exercise of jurisdiction for the purposes of Article 1 ECHR.
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