EDAL case summaries

Effective access to justice relies on an individual having a voice in the proceedings concerning him or her. Solely focusing on the credibility of the appellant’s account and not having regard to objective evidence testifying to the appellant’s vulnerability or the risk to the appellant of return to Afghanistan has led to the proceedings being neither fair nor just. A material error of law has therefore been committed. 

This case dealt with the issue of whether the Secretary of State’s certification of the asylum claims of the two independent applicants as “clearly unfounded” was flawed on public law grounds, and the important difference between a decision on refugee status itself and a decision on a claim being “clearly unfounded”.
 

The Court found a violation of Article 3 in relation to a subsequent application for asylum, which had been rejected on the basis that it contained no new elements indicating that the Applicants ran a real risk of being subjected to inhuman and degrading treatment or punishment on deportation to Russia. Because new information had in fact been provided, the national authorities were under an obligation to thoroughly review the information in order to assure themselves that the Applicants’ rights under Article 3 would be safeguarded.

If an appellant provides substantiated reasons that call into question the consideration of evidence in the administrative proceedings, the facts cannot be regarded as “well established on basis of the records in combination with the complaint”. Thus, an oral hearing has to be held. The same applies if there is a necessity to consider up-to-date country of origin information as well as an up-to-date medical report due to the long duration of the judicial proceedings.

In the opinion of the court, the absence of a legal representative in the oral hearing, in spite of an explicit...