NZ & ors v Minister for Justice

EMNireland

Respondent/Defendant:Minister for Justice, Ireland
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:03 Oct 2023
Judge:Phelan, S.
Category:Visa
Keywords:Charter of Fundamental Rights of the European Union, Child, Citizenship, European Convention on Human Rights (ECHR), Family (Nuclear), Family Reunification, Family Unity (Right to), Marriage of Convenience, Naturalisation, Visa
Country of Origin:Pakistan
URL:https://www.courts.ie/view/judgments/2c4a0156-96b1-4406-aea5-974d177175f8/47bd6fa5-1c6a-4229-b8f0-294d5fac50fa/2023_IEHC_545.pdf/pdf
Geographic Focus:Ireland, Pakistan

Facts: SMR was born in Pakistan and married an Irish national in 2004. In 2005, he moved to Ireland and he is now a naturalised Irish citizen. The couple had two children, who are Irish citizens. The applicant submitted that his marriage was subsequently dissolved in accordance with Pakistani law around 2011 and he has custody of the children. In … Read More

Principles:When deciding whether to issue a join family visa to the child of an Irish citizen, consideration must be given the child’s rights under Articles 40 to 42A of the Irish Constitution and a balancing exercise must be conducted between the child’s rights and the State’s interests and the common good.
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S.Y. v Minister for Children, Equality, Disability, Integration and Youth & ors

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S.Y. v Minister for Children, Equality, Disability, Integration and Youth & ors
Respondent/Defendant:The Minister for Children, Equality, Disability, Integration and Youth, Ireland, the Attorney General, the Child and Family Agency
Court/s:High Court
Citation/s:[2023] IEHC 187
Nature of Proceedings:Judicial Review
Judgment Date/s:21 Apr 2023
Judge: Meenan C.
Category:Asylum, Refugee Law
Keywords:Charter of Fundamental Rights of the European Union, Child, Minor, Protection (Application for International), Reception Conditions, Reception Conditions (Material)
Country of Origin:Afghanistan
URL:https://courts.ie/acc/alfresco/599db9da-fb81-48fc-9cfb-cbbdfa313df5/2023_IEHC_187.pdf/pdf#view=fitH

Facts: The appellant was a 17-year-old Afghan national who applied for international protection in Ireland. He did not have documents to prove his age when he applied for international protection, and it was believed by authorities that he was an adult. When he applied, he was informed that there was no accommodation available for international protection applicants. He was given … Read More

Principles: Failure to provide an applicant with material reception conditions is unlawful under the European Union (Reception Conditions) Regulations 2018 and such a failure is a breach of the right to human dignity under Article 1 CFREU.
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M.K. (Albania) v Minister for Justice and Equality

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M.K. (Albania) v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice, Ireland and the Attorney General
Court/s:Supreme Court
Citation/s:[2022] IESC 48
Nature of Proceedings:Judicial review
Judgment Date/s:24 Nov 2022
Judge:MacMenamin, J., Baker, M., Hogan, G., O’Donnell, D., O’Malley, I.
Category:Deportation
Keywords:Asylum Applicant, Charter of Fundamental Rights of the European Union, Child, Deportation Order, European Convention on Human Rights (ECHR), Minor (Unaccompanied)
Country of Origin:Albania
URL:www.courts.ie/acc/alfresco/b7644178-2667-49b6-9267-a026008e7947/2022_IESC_48_(Mac%20Menamin%20J).pdf/pdf#view=fitH

Facts: The appellant, MK, was a national of Albania and arrived in Ireland in 2016 as an unaccompanied minor. He lived with a foster family and was enrolled in school in Dublin. He applied for international protection in 2017 with the assistance of Tusla, and in 2018, he was granted permission to enter the labour market. He left school and … Read More

Principles:Exceptional circumstances do not need to be established for Article 8(1) ECHR rights to be engaged. A low threshold applies to engaging Article 8(1) rights. Once engaged, the decision-maker must then conduct a proportionality assessment under Article 8(2) ECHR as to whether the interference with a person’s Article 8 rights was proportionate to the legitimate aim being pursued.
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SH and AJ v Minister for Justice, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2022] IEHC 392
Nature of Proceedings:Judicial Review
Judgment Date/s:27 Jun 2022
Judge:Ferriter C.
Category:International protection, Refugee Law
Keywords:Charter of Fundamental Rights of the European Union, Child, Discrimination (Indirect), European Convention on Human Rights (ECHR), Family Reunification, Family Unity (Right to), Minor
Country of Origin:Syria, Somalia
URL:https://www.courts.ie/acc/alfresco/80e83a63-c91b-47e7-a90d-99f4a672064e/2022_IEHC_392.pdf/pdf#view=fitH

Facts: SH was a Syrian national whose wife and three children resided in Syria. SH applied for international protection in Ireland in February 2020. There were delays in processing his case, including due to COVID-19. While awaiting an interview, one of SH’s sons turned 18. SH was granted refugee status in June 2021 and subsequently made a family reunification application … Read More

Principles:The delays experienced during the COVID-19 pandemic were exceptional and not unreasonable delays for processing an international protection application. The scope of the definition of family members eligible for family reunification under section 56 of the International Protection Act 2015 was a matter of policy choice by the legislature and not in breach of EU law, nor was it repugnant to the Constitution or the ECHR. Failure to inform a beneficiary of international protection of their right to family reunification promptly and in a language they can likely understand is in violation of Article 22 of the Qualification Directive 2004/83/EC
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Coman v Inspectoratul General pentru Imigrări

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Respondent/Defendant:Inspectoratul General pentru Imigrări
Court/s:ECJ
Citation/s:ECLI:EU:C:2018:385
Nature of Proceedings:Preliminary reference
Judgment Date/s:05 Jun 2018
Judge:Lenaerts K.
Category:EU Treaty Rights
Keywords:Charter of Fundamental Rights of the European Union, EU Treaty Rights, Family Member, Free Movement, Third-Country National, Union Citizen
Country of Origin:Romania, America
URL:http://curia.europa.eu/juris/liste.jsf?num=C-673/16
Geographic Focus:Europe

Facts: Mr Coman, who held Romanian and American citizenship, and Mr Hamilton, an American citizen, met in New York in June 2002 and lived there together from May 2005 to May 2009. Mr Coman then took up residence in Brussels in order to work at the European Parliament as a parliamentary assistant, while Mr Hamilton continued to live in New … Read More

Principles:

Where a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Member States may not refuse to grant that third-country national a right of residence on the basis that the law of that Member State does not recognise marriage between persons of the same sex.

A third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38.

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NVH v Minister for Justice and Equality and the Attorney General

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NVH v Minister for Justice and Equality: Supreme Court ruling on ban on asylum seekers looking for work
Respondent/Defendant:Minister for Justice and Equality
Court/s:Supreme Court
Citation/s:[2017] IESC 35
Nature of Proceedings:Appeal
Judgment Date/s:30 May 2017
Judge:O'Donnell D.
Category:Employment, Refugee Law
Keywords:Asylum, Charter of Fundamental Rights of the European Union, Employment, European Convention on Human Rights (ECHR), Pull Factor, Refugee, Refugee Law
Country of Origin:Burma
URL:https://www.courts.ie/acc/alfresco/553e0e20-ac4a-48e6-a4fa-fef5638377ac/2017_IESC_35_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: Section 9 of the Refugee Act 1996 provided that a person seeking asylum is entitled to enter the State and remain while the application for refugee status is processed. Section 9(4) also provided however, that an applicant shall not seek or enter employment before final determination of his or her application for a declaration. Pending the determination of an … Read More

Principles:

The absolute prohibition on asylum seekers seeking employment,  coupled with the absence of a maximum time limit on the processing of asylum applications, meant the prohibition was in breach of the constitutional right to seek employment.

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NHV v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Citation/s:[2016] IECA 86
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:14 Mar 2016
Judge:Finlay Geoghegan M., Hogan G.
Category:Refugee Law
Keywords:Asylum, Charter of Fundamental Rights of the European Union, Pull Factor, Refugee
Country of Origin:Burma
URL:https://www.courts.ie/search/judgments/%22%20type%3AJudgment%22%20AND%20%22filter%3Aalfresco_radio.title%22%20AND%20%22filter%3Aalfresco_NeutralCitation.%5B2016%5D%20IECA%2086%22
Geographic Focus:Other

Facts: The appellant was a Burmese national who arrived in Ireland on 16 July 2008 and applied for refugee status on the following day. By May 2013, his application for a declaration of refugee status had not been determined. There had been decisions which had been the subject of successful judicial review applications and the matter was remitted back to … Read More

Principles:

This decision establishes that asylum seekers do not have a constitutionally protected right to work and earn a livelihood in the State, and that the Minister is therefore entitled to exclude people in the asylum process from seeking or entering employment. (This decision is under appeal to the Supreme Court).

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C-239/14: Abdoulaye Amadou Tall v Centre public d’action sociale de Huy

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Respondent/Defendant:Centre public d’action sociale de Huy
Court/s:ECJ
Citation/s:C-239/14
Nature of Proceedings:Preliminary reference
Judgment Date/s:17 Dec 2015
Judge:L. Bay Larsen (Rapporteur), President of the Third Chamber, acting as President of the Fourth Chamber, M.J. Malenovský, M. Safjan, A. Prechal and K. Jürimäe, Judges
Category:Refugee Law
Keywords:Charter of Fundamental Rights of the European Union, Refugee
Country of Origin:Senegal
URL:http://curia.europa.eu/juris/document/document.jsf?text=&docid=173121&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=260541
Geographic Focus:Europe

Facts:The applicant was a Senegalese national who applied unsuccessfully for asylum in Belgium. He then made a subsequent examination for asylum which, following a preliminary examination, was not accepted. He was later served with an expulsion order. He challenged a decision to withdraw his social assistance before the courts, which found that the only remedy under Belgian law against a … Read More

Principles:

This decision shows that where a decision is made not to examine further a subsequent application for asylum, it is open to Member States to provide that any appeal against that decision does not have suspensive effect, and such provision will not breach the Procedures Directive or Articles 19(2) or 47 of the CFR.

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Cases A (C-148/13), B (C-149/13) and C (C-150/13) v Staatssecretaris van Veiligheid en Justitie

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Respondent/Defendant:Staatssecretaris van Veiligheid en Justitie
Court/s:ECJ
Citation/s:C-148/13, C-149/13 and C-150/13
Nature of Proceedings:Preliminary ruling
Judgment Date/s:02 Dec 2014
Judge:CJEU, Grand Chamber: V. Skouris, President, K. Lenaerts, vice-President, A. Tizzano, L. Bay Larsen (Rapporteur), T. von Danwitz, A. Ó Caoimh and J.-C. Bonichot, Presidents of Chambers, A. Borg Barthet, J. Malenovský, E. Levits, E. Jarašiūnas, J.L. da Cruz Vilaça and C.G. Fernlund, Judges
Category:Refugee Law
Keywords:Charter of Fundamental Rights of the European Union, Refugee
Country of Origin:A (Gambia), B (Afghanistan) and C (Uganda)
URL:http://curia.europa.eu/juris/document/document.jsf?text=&docid=160244&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=224819
Geographic Focus:Europe

Facts:The three above-named applicants for asylum in The Netherlands all claimed to be homosexual. Their applications were rejected for lack of credibility on various grounds. They challenged those decisions and the court dealing with the challenges referred a question to the Court of Justice of the European Union (CJEU), asking what limits did Article 4 of the Qualification Directive (Directive … Read More

Principles:

When determining applications for international protection, decision-makers are required by the Qualification Directive and the Procedures Directive to take account of the individual position and personal circumstances of the protection applicant. When dealing with applications based on homosexuality, it will not be sufficient to reject their credibility solely on the basis of stereotypical assumptions as to the behaviour of homosexuals. Putting questions to allegedly homosexual applicants about the details of their sexual practices will contravene the CFR, as will encouraging such applicants to submit documentary evidence, such as pictures or videos, of their engaging in homosexual relations, or subjecting them to tests designed to establish their alleged sexuality. The credibility of such applications should not be rejected solely on account of the fact that the claim to be homosexual was not made at the initial stages of a application. In that respect, regard should be had to the personal circumstances of the applicant and any vulnerability on his or her part when assessing any delay in making such a claim.

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JS and Others v Minister for Justice and Equality and the Attorney General

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Respondent/Defendant:Minister for Justice and Equality and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 195
Nature of Proceedings:Judicial Review
Judgment Date/s:28 Mar 2014
Judge:McDermott J.
Category:Deportation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/abd9353b-9eca-4e2e-b525-78ab8527c1f5/2014_IEHC_195_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: The second applicant, M.A., was a Nigerian national who entered Ireland lawfully on the 17th December, 2002, having been given permission to do so. He failed to comply with the conditions of his permission to work and claimed social welfare. He also committed a series of criminal offences. His application for renewal of his permission was refused in 2004. … Read More

Principles:

A non-national in respect of whom a deportation order is made will not obtain a derivative right to remain in the State on the basis of the Treaty on the Functioning of the European Union and the decision of the Court of Justice of the European Union in  C-34/09 Zambrano by virtue of being the parent of Irish and, hence, EU citizen children, if his deportation will not oblige them to leave the State or the territory of the European Union.

Having regard to Article 51 of the Charter of Fundamental Rights, Article 7 (right to respect for private and family life) and Article 24 (best interests of children a primary consideration in actions concerning children), will not impinge on the power of the State to deport a non-national parent of Irish citizen children because that power is not part of the implementation of Union law.

Deportation of a non-national who has a medical condition will not breach article 3 ECHR in the absence of exceptional circumstances, such as a threat to life, and particularly where treatment for the condition is available in his or her country of origin.

The extent of the obligation on the Minister for Justice to consider aspects of a proposed deportee’s family life in the course of an application for revocation of the deportation order existing in respect of him or her will vary depending on the extent to which such matters have been considered in making the deportation order and in determining any previous application for revocation.

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Hamza v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2013] IESC 9
Nature of Proceedings:Appeal
Judgment Date/s:20 Feb 2013
Judge:Fennelly J. (Denham CJ, Murray, Hardiman and Clarke JJ. concurring)
Category:Refugee Law, Residence
Keywords:Charter of Fundamental Rights of the European Union, Family Reunification, Refugee, Residence
Country of Origin:Sudan
URL:https://www.courts.ie/acc/alfresco/76696c85-52c2-425f-9edc-62942e421d41/2013_IESC_9_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The first applicant was a national of Sudan who had been granted refugee status. He applied to the Minister for Justice pursuant to s. 18 of the Refugee Act 1996 for family reunification with his spouse, the second named applicant. In the course of his application he submitted a certificate which indicated that the marriage had taken place by … Read More

Principles:

The question of whether a person the subject of an application for family reunification is the spouse of the applicant, as alleged, is a matter for the Minister for Justice to decide. A marriage contracted in a foreign country which complies with the requirements of the laws of that country, the lex loci celebrationis, is valid under Irish law, unless it conflicts with fundamental requirements relating to validity, such as incapacity to marry. Proxy marriages validly contracted under foreign law are therefore valid under Irish law, unless the existence of a fundamental requirement relating to validity is shown to exist.

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Mallak v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 59
Nature of Proceedings:Appeal
Judgment Date/s:06 Dec 2012
Judge:Supreme Court (Fennelly J gave judgment for the Court) (Denham CJ, Murray J, O’Donnell J, McKechnie J)
Category:Citizenship, Naturalisation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Citizenship (Acquisition of), Geneva Convention & Protocol, Naturalisation, Non-national, Refugee, Refugee (Convention)
URL:https://www.courts.ie/acc/alfresco/01c05728-fb80-47dc-a324-7b100387151a/2012_IESC_59_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The appellant was a citizen of Syria. He and his wife were recognised as refugees in Ireland in 2002 and he subsequently applied for a certificate of naturalisation pursuant to Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended). This application was refused by the Minister in November 2008 acting in his absolute discretion. He did … Read More

Principles:

It does not necessarily follow that where a decision is in the absolute discretion of the decision maker, no reason need be given for it. There is a difference between having a reason and disclosing it. It cannot be correct to say that the ‘absolute discretion’ conferred on the Minister necessarily implied that he is not obliged to have a reason. That would be the very definition of an arbitrary power and the rule of law required all decision makers to act fairly and rationally, meaning that they must not make decisions without reasons.

While the grant or refusal of a certificate of naturalisation is, at least in one sense, a matter of privilege rather than of right, the mere fact that a person is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or apply to the courts for redress. It would be contrary to the notion of a state founded on the rule of law if all persons within the jurisdiction, including non-nationals, did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights.

It is impossible for an applicant to address the Minister’s concerns and to make an effective application when he is in complete ignorance of the Minister’s concerns. More fundamentally, it is not possible for an applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it would not possible for the courts to effectively exercise their power of judicial review.

Several converging legal sources strongly suggested an emerging common view that persons affected by administrative decisions have a right to know the reasons on which they are based including Section 18 of the Freedom of Information Act 1997, Article 296 of the Treaty on the Functioning of the European Union (TFEU) and Article 41 of the EU Charter of Fundamental Rights, which provides that every person shall benefit from the right to good administration including the obligation of the administration to give reasons for its decisions,  as well as relevant jurisprudence. 

The Supreme Court considered that at the very least the decision maker must be able to justify the refusal to give reasons.

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MM v Minister for Justice and Law Reform, Ireland and the Attorney General

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MM
Court/s:ECJ
Citation/s:Case C-277/11
Nature of Proceedings:Judgment of the ECJ on a preliminary reference from the Irish High Court (Hogan J) pursuant to Article 267 TFEU
Judgment Date/s:22 Nov 2012
Judge:ECJ
Category:Refugee Law
Keywords:Asylum, Charter of Fundamental Rights of the European Union, Common European Asylum System (CEAS), Protection, Protection (Application for International), Protection (Subsidiary), Refugee
Country of Origin:Rwanda
URL:http://curia.europa.eu/juris/document/document.jsf?text=&docid=130241&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1029079
Geographic Focus:Europe

Facts The ECJ gave judgment on a preliminary reference by the High Court in the context of judicial review proceedings challenging the decision of the Minister refusing the applicant’s application for subsidiary protection. In essence, the question referred by the High Court was: does the requirement to cooperate with the applicant for subsidiary protection, following a refusal to grant refugee … Read More

Principles:

The requirement on a Member State to cooperate with an applicant per Article 4(1), second sentence, cannot be interpreted to mean that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is obliged – before adopting its decision – to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make his views known.

However, in the case of a system where there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, it is for the national court to ensure the applicant’s fundamental rights are observed in each of these procedures, particularly the right to be heard in the sense that the applicant must be able to make his views known before any decision is adopted that does not grant the protection requested. The fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.

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Joined cases C-411/10 NS and C-493/10 ME

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Respondent/Defendant:Secretary of State for the Home Department et al
Court/s:ECJ
Citation/s:[2011] ECR I-0000
Judgment Date/s:21 Dec 2011
Judge:Grand Chamber of the Court of Justice of the European Union
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Asylum Seeker (Secondary Movement of), Charter of Fundamental Rights of the European Union, Country of Origin (Safe), Dublin Regulation, Refugee, Transfer Order
URL:http://curia.europa.eu/juris/document/document.jsf?text=&docid=117187&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=216473
Geographic Focus:Europe

In Case C-411/10 N.S., the applicant, an Afghan national, came to the UK after travelling through, inter alia, Greece. He did not apply for asylum in Greece, and he claimed that the Greek authorities detained him, gave him an order to leave Greece, and subsequently arrested him and expelled him to Turkey, from where he travelled to the UK. The … Read More

Principles:

A Member State exercising its discretionary power under Article 3(2) of the Dublin Regulation must be considered as implementing EU law within the meaning of Article 6 TEU and Article 51(1) of the Charter. Presumptions that Member States comply with the Charter, Geneva Convention, and ECHR must be regarded as rebuttable. Member State may not transfer an asylum seeker under the Dublin Regulation where it cannot be unaware that systematic deficiencies in the asylum procedure and reception conditions in a receiving Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment under Article 4 of the Charter.

Subject to Article 3(2) of the Dublin Regulation, where a Member State finds that it is impossible to transfer an applicant to another Member State under the Dublin Regulation, the Member State must continue to examine the criteria in Chapter III of the Regulation in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application.

The Member State in which an applicant is present must ensure that it does not worsen a situation where an applicant’s fundamental rights have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the Member State where the applicant is present must examine the application under Article 3(2) of the Regulation. Information such as that cited by the EctHR, re relevant risks to which asylum seekers would be exposed, enables Member States to assess the functioning of the Member States’ asylum systems, making it possible to evaluate risks.

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