Case Law

5 May 2021 | Judicial Body: Belgium: Conseil du Contentieux des Etrangers | Topic(s): Domestic violence | Countries: Belgium - Türkiye

The Committee considered that the State party failed to adequately assess the author’s real, personal and foreseeable risk of returning to Afghanistan, in particular taking into account his father’s alleged threats of revenge and his trauma as a result of parental abuse. Accordingly, the Committee considers that the State party failed to give due consideration to the consequences of the author’s personal situation in Afghanistan and concludes that his removal to Afghanistan by the State party would constitute a violation of articles 6 and 7 of the Covenant.

30 April 2021 | Judicial Body: UN Human Rights Committee (HRC) | Topic(s): Deportation / Forcible return - Human rights law | Countries: Afghanistan - Sweden

The court ruled that states must take into account circumstances arising after a transfer decision. See the decision for more details.

15 April 2021 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Family reunification | Countries: Belgium

(1) The concept of ‘new elements or findings [that] have arisen or have been presented by the applicant’, as used in Article 40(2) and (3) 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, must be interpreted as meaning that it also covers elements or findings which already existed before the procedure relating to a previous application for international protection was definitively concluded, but which were not relied on by the applicant in the context of that procedure. (2) Article 40(3) of Directive 2013/32 must be interpreted as meaning that the substantive examination of a subsequent application does not require a specific procedure, provided that the national procedure fulfils the requirements laid down in Chapter II of that directive. Article 42(2) of that directive, read in conjunction with Article 40(2) to (4) and Article 33(2)(d) thereof, must be interpreted as prohibiting the setting of time limits per se. (3) Article 40(4) of Directive 2013/32 must be interpreted as meaning that the condition relating to the absence of fault laid down therein cannot be applied in the context of an administrative procedure unless that condition is expressly laid down in national law in a manner that satisfies the requirements of legal certainty. It is for the referring court to verify whether this is the case here.

15 April 2021 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Refugee status determination (RSD) / Asylum procedures | Countries: Austria - Iraq

A reassessment of Mongolia as a safe country of origin for an LGBTI asylum-seeker did not meet Dutch law standards.

7 April 2021 | Judicial Body: Netherlands, The: Council of State (Raad van State) | Topic(s): Lesbian, gay, bisexual, transgender and intersex (LGBTI) | Countries: Mongolia - Netherlands

The court found violations of Article 3 ECHR, A violation of Article 5 §3 ECHR, Article 5 §5 ECHR when the applicant was kept in a prison cell with a serious lack of space, when the applicant was not a flight risk and the detention order did not demonstrate a need for detention, and when there was no right to compensation under national law.

25 March 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Prison or detention conditions | Countries: Ukraine

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