Case Law

From the press release (attached): The Court held that the presumption of equivalent protection applied in Mr Moldovan’s case in so far as the two conditions for its application, namely the absence of any margin of manoeuvre on the part of the national authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union (EU) law, were met. The Court therefore confined itself to ascertaining whether or not the protection of the rights guaranteed by the Convention had been manifestly deficient in the present case, such that this presumption was rebutted. To that end it sought to determine whether there had been a sufficiently solid factual basis requiring the executing judicial authority to find that execution of the EAW would entail a real and individual risk to the applicant of being subjected to treatment contrary to Article 3 on account of his conditions of detention in Romania. In Mr. Bivolaru's case: The Court considered that the executing judicial authority, following a full and in-depth examination of the applicant’s individual situation which demonstrated that it had taken account of his refugee status, had not had a sufficiently solid factual basis to establish the existence of a real risk of a breach of Article 3 of the Convention and to refuse execution of the EAW on that ground. The Court also considered that the description of conditions of detention in Romanian prisons provided by the applicant to the executing judicial authority in support of his request not to execute the EAW had not been sufficiently detailed or substantiated to constitute prima facie evidence of a real risk of treatment contrary to Article 3 in the event of his surrender to the Romanian authorities. In the Court’s view, the executing judicial authority had not been obliged to request additional information from the Romanian authorities. Accordingly, it held that there had not been a solid factual basis for the executing judicial authority to establish the existence of a real risk of a breach of Article 3 of the Convention and to refuse execution of the EAW on those grounds.

25 March 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Freedom from torture, inhuman and degrading treatment | Countries: France - Romania

1. The word “admissible” must mean in the context of paragraph 403(c) the ability to enter lawfully and reside lawfully. “Admissible” does not incorporate the concept of “permanent residence”. 2. The Statelessness Convention does not impose a requirement on contracting parties to grant either permanent residence or citizenship.

25 March 2021 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Legal Instrument: 1954 Statelessness Convention | Topic(s): Entry / Exit - Residence permits / Residency - Statelessness | Countries: Kuwait - United Kingdom of Great Britain and Northern Ireland

This case concerned the application of the Hague Convention on child abduction and UK asylum law. The court concluded that a child cannot be removed by a Hague Convention order until after a final determination on the principal applicant's asylum claim.

19 March 2021 | Judicial Body: United Kingdom: Supreme Court | Topic(s): Abduction | Countries: South Africa - United Kingdom of Great Britain and Northern Ireland

The Court found violations of articles 3, 5§1, and 5§5, when the applicant was kept in a cell measuring only 1.4 meters in pre-trial detention, placed in a metal cage during appellate proceedings, was not released immediately despite being granted refugee status in Sweden, and when the applicant had no available compensation under domestic law.

18 March 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Immigration Detention - Prison or detention conditions | Countries: Ukraine - Uzbekistan

In the circumstances of a case such as that in the main proceedings, the relevant point in time for assessing the ‘minor’ status of the beneficiary of international protection pursuant to the third indent of Article 2(j) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, is the date on which his father makes an application for international protection pursuant to Article 6(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, provided that the beneficiary of international protection has applied for that protection prior to reaching the age of majority and both family members in question are present in the same Member State prior to beneficiary of international protection reaching the age of majority. In accordance with the third indent of Article 2(j) of Directive 2011/95, the concept of ‘family members’ in respect of a father of a beneficiary of international protection is dependent solely on the three conditions, namely that the family already existed in the country of origin, that the family members of the beneficiary of international protection are present in the same Member State in relation to the application for international protection and that the beneficiary of international protection is an unmarried minor. The third indent of Article 2(j) of Directive 2011/95 does not require the resumption between the family members in question of family life within the meaning of Article 7 of the Charter of Fundamental Rights of the European Union. If an unmarried minor pursuant to the third indent of Article 2(j) of Directive 2011/95 on reaching the age of majority expressly indicates in writing that he or she does not wish to maintain family unity, then the purpose of Article 23 of Directive 2011/95 cannot be achieved and the competent national authorities are not required to grant to family members the corresponding benefits under Articles 24 to 35 of that directive. The rights of family members pursuant to the third indent of Article 2(j) and Article 23(2) of Directive 2011/95 do not persist for an unlimited period of time. The right of family members pursuant to the third indent of Article 2(j) and Article 23(2) of Directive 2011/95 to claim the benefits referred to in Articles 24 to 35 of that directive persists after the beneficiary of subsidiary protection reaches the age of majority, for the duration of the period of validity of the residence permit granted to them in accordance with Article 24(2) of that directive.

18 March 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Family reunification | Countries: Afghanistan - Germany

5 March 2021 | Judicial Body: UN Committee on the Rights of the Child (CRC) | Topic(s): Children's rights - Convention on the Rights of the Child (CRC) | Countries: Denmark - Somalia

The case concerned the applicants’ confinement in the Röszke transit zone on the border with Serbia in April-August 2017. The Court found, in particular, that the lack of food provided to R.R. and the conditions of stay of the other applicants (a pregnant woman and children) had led to a violation of Article 3. It also found that that the applicants’ stay in the transit zone had amounted to a de facto deprivation of liberty and that the absence of any formal decision of the authorities and any proceedings by which the lawfulness of their detention could have been decided speedily by a court had led to violations of Article 5.

2 March 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Immigration Detention | Countries: Hungary

The court annulled parts of the recently amended Belgian legislation by finding: 1) refugees cannot be prosecuted based on illegal entry or stay, 2) asking refugees to deposit their original documents for the entirety of the procedure violated their right to privacy, 3) the provision regarding detention is justified for purposes of investigation prior to admission, and 4) the shortened appeal period (from 15 to 10 days) was not unconstitutional. The court annulled 7 provisions and clarified 7 others.

25 February 2021 | Judicial Body: Belgium: Cour constitutionnelle | Countries: Belgium

In the light of the foregoing considerations, I propose that the Court should answer the first and second questions referred for a preliminary ruling by the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany) as follows: 1. Article 15(c), read in conjunction with Article 2(f), of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as precluding a national practice whereby a finding of serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict, within the meaning of that provision, can be made, in a case where that civilian is not specifically targeted by reason of factors particular to his or her circumstances, only if the ratio between the number of casualties in the area in question and the total number of individuals making up the population of that area reaches a fixed threshold. 2. In order to verify the level of the degree of indiscriminate violence of the armed conflict, for the purposes of determining whether there is a real risk of serious harm within the meaning of Article 15(c) of Directive 2011/95, it is necessary to carry out a comprehensive assessment, both quantitative and qualitative in nature, of all relevant facts characterising that conflict, based on the collection of objective, reliable and up-to-date information including, in particular, the geographical scope of the situation of indiscriminate violence, the actual destination of the applicant in the event that he or she is returned to the relevant country or region, the intensity of the armed confrontations, the duration of the conflict, the level of organisation of the armed forces involved, the number of civilians killed, injured or displaced as a result of the fighting, and the nature of the methods or tactics of warfare employed by the parties to the conflict.

24 February 2021 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): EU Qualification Directive | Countries: Afghanistan - Germany

This judgment concerns the application of an internal flight or relocation alternative, concluding that the living standards in the proposed place of relocation must not violate Article 3 of the ECHR.

18 February 2021 | Judicial Body: Germany: Bundesverwaltungsgericht | Topic(s): Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) | Countries: Germany