Case Law

In it’s judgement E 2372/2021 issued 7 October 2021, the Constitutional Court ruled that due to “UNHCR International Protection Considerations with Regard to People Fleeing the Republic of Iraq” from May 2019, Sunni Arab men and boys of fighting age, who lived in an area under ISIS control and/or where ISIS maintains a presence and women and children associated with real or perceived ISIS members on account of their family or tribal relations meet a specific risk profile as they are under general suspicion of supporting ISIS. Therefore, people fulfilling these characteristics are likely in need of international refugee protection, depending on the individual circumstances of the case. Referring to the UNHCR International Protection Considerations as well as the “EASO Country Guidance: Iraq” from January 2021 the Constitutional Court ruled that the Federal Administrative Court must duly take into consideration the individual situation of the complainant against the backdrop of the specific risk profile in case the complainant has put forward fear of persecution because of the affiliation to the risk profile in a substantiated way. In the present case the Federal Administrative Court assumed that the alleged threat by Shiite militias was due to the battles between ISIS, militias and Iraqi units at that time and has not been directed against the complainant or his family directly. It denied an individual persecution without considering that the complainant – a Sunni Arab of fighting age, who lived in an area under ISIS control – was meeting a specific risk profile. The Federal Administrative Court’s findings were thus found to be arbitrary by the Constitutional Court.

27 January 2022 | Judicial Body: Austria: Constitutional Court of Austria (Verfassungsgerichtshof) | Topic(s): Armed forces / Military - Asylum-seekers - International armed conflict - Social group persecution | Countries: Austria - Iraq

The Constitutional Court addressed its judgement E 3445/2021 (issued 30 September 2021) that an extreme volatility of the security situation in Afghanistan was to be assumed based on country information sheets on Afghanistan issued by the Austrian COI Unit on 11 June 2021 and 19 July 2021 at the date of the decision of the Federal Administrative Court on 29 July 2021. In addition, the widespread media coverage after 20 July 2021 (which was therefore available at the time of the decision of the Federal Administrative Court) lead to the same conclusion. The complainant would have therefor been exposed to a real danger of violation of his constitutional rights under Articles 2 and 3 ECHR if he were to return to Afghanistan. (see also E 3047/2021 issued 24 September 2021)

30 September 2021 | Judicial Body: Austria: Constitutional Court of Austria (Verfassungsgerichtshof) | Topic(s): Asylum-seekers - Country of origin information (COI) | Countries: Afghanistan - Austria

In its judgment E 3047/2021 issued 24 September 2021, the Constitutional Court ruled that based on the Austrian COI Unit’s (Staatendokumentation) country information sheet on Afghanistan dated 11 June 2021 , the risk of an armed conflict between the Taliban and government troops affecting the whole country should have been apparent to the Federal Administrative Court at the date of its decision on 1 July 2021. Thus, the risk of a serious threat to life or physical integrity as a result of arbitrary violence in the context of an internal conflict for members of the civilian population such as the complainant must have been clear to the Federal Administrative Court at the time of its decision. Furthermore, the Constitutional Court found that due to the widespread media coverage of the developments in Afghanistan, the Federal Administrative Court had to assume that the security situation in Afghanistan was to be classified as extremely volatile. It also reiterated that widespread media coverage must be considered notorious. The Constitutional Court therefore found that the Federal Administrative Court did not meet its obligation to investigate in detail the existence of a real risk of a violation of Art 2 or Art 3 ECHR if the complainant were to return to Afghanistan in view of the almost daily changing situation in the armed conflict between the Taliban and the Afghan government and its troops. The Federal Administrative Court had denied a military conflict in certain places, without considering the serious threat of an imminent significant deterioration of the security situation, that had in fact already partially occurred across the country and was possibly imminent in the places which the Federal Administrative Court considered an internal flight alternative for the complainant (namely Mazar-e Sharif and Herat). Since the Federal Administrative Court’s assumption of the complainant’s return situation in line with Articles 2 and 3 of the ECHR was solely momentarily without considering the rapidly changing security situation in Afghanistan, its findings were found to be arbitrary by the Constitutional Court.

24 September 2021 | Judicial Body: Austria: Constitutional Court of Austria (Verfassungsgerichtshof) | Topic(s): Asylum-seekers - Country of origin information (COI) | Countries: Afghanistan - Austria

The FAC has ruled that the SEM has to apply the principle of proportionality, which generally applies to revocation of residence permits, in cases where temporary admission is withdrawn. The FAC found that the temporary admission of the appellant, an Eritrea national, should be maintained.

28 October 2020 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Asylum-seekers - Residence permits / Residency | Countries: Eritrea - Switzerland

This decision was about the granting of family asylum to a woman of Tibetan ethnicity. It represent a landmark judgment of the FAC acknowledging the existence of a new specific circumstance that goes against the granting of family asylum. The FAC overrules the decision of the SEM to refuse family asylum and refers the matter back to the SEM for further investigation and reassessment.

1 July 2020 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Asylum-seekers - Family reunification - Refugee / Asylum law - Tibetan | Countries: China - Switzerland

19 June 2020 | Judicial Body: Ireland: Supreme Court | Topic(s): Asylum-seekers - Derivative status - Family reunification | Countries: Ireland - Somalia

For these reasons, the court, unanimously: Decides to join the applications; Declares inadmissible: (i) the first and eighth applicants’ complaints that their detention under the domestic court’s detention orders did not comply with Article 5 § 1 of the Convention and (ii) the sixth, seventh and ninth applicants’ complaints that their detention under the domestic court’s detention orders prior to 10 August, 5 November and 22 May 2012 respectively did not comply with Article 5 § 1 of the Convention; Declares the remainder of the applications admissible; Holds that there has been a violation of Article 5 § 1 of the Convention in respect of second to ninth applicants, on account of lack of records of their arrest and detention prior to the issuance of detention orders in respect of them; Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the second to fifth applicants on account of their detention under the domestic court’s detention orders in the absence of a decision ordering their expulsion; Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the sixth applicant on account of his detention from 10 August to 17 October 2012, in respect of the seventh applicant on account of his detention from 5 to 23 November and in respect of the ninth applicant on account of his detention from 22 May to 17 October 2012; Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the first and the sixth to ninth applicants.

18 June 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Topic(s): Asylum-seekers - Immigration Detention | Countries: Somalia - Ukraine

The judgment deals with the question of when asylum applications must be referred to the extended procedure due to their complexity instead of being decided under the accelerated procedure.

9 June 2020 | Judicial Body: Switzerland: Tribunal administratif fédéral | Topic(s): Asylum-seekers - Refugee status determination (RSD) / Asylum procedures | Countries: Iran, Islamic Republic of - Switzerland

The Court is requested to order the voidness of section 4 of the Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel 5775-2014 (Legislative Amendments and Temporary Provisions) 5775-2014 (hereinafter: the "Amending Law") that obliges foreign workers who entered Israel not through a border crossing (hereinafter: "Infiltrator Workers") and their employers to deposit in a special bank account a total amount at a rate of 36% of the worker's wages that will be paid to the worker only at the time of his departure from Israel (hereinafter: the "Deposit Scheme"). In short, the Petitioners argue that the Deposit Scheme, in general, or in the least some of its components, is unconstitutional and therefore should be voided.

23 April 2020 | Judicial Body: Israel: High Court of Justice | Topic(s): Administrative law - Asylum-seekers - Constitutional law - Illegal entry - Non-refoulement | Countries: Eritrea - Israel - Sudan