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Opinion of Advocate General Hogan, delivered on 25 March 2021, Case C‑768/19, Bundesrepublik Deutschland v. SE

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 | Document type: Case Law | Topic(s): Family reunification | Countries: Afghanistan - Germany

Opinion of Advocate General Pikamae, delivered on 11 February 2021, Case C‑901/19, CF, DN v. Bundesrepublik Deutschland

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 | Document type: Case Law | Topic(s): EU Qualification Directive | Countries: Afghanistan - Germany

Opinion of Advocate General Hogan, delivered on 11 February 2021, Case C‑921/19, LH v. Staatssecretaris van Justitie en Veiligheid

The maintenance by a determining authority of a Member State of a practice whereby original documents can never constitute new elements or findings for the purposes of a subsequent asylum application if the authenticity of those documents cannot be established is incompatible with Article 40(2) 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, read in conjunction with Article 4(2) 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. There is no difference between copies of documents or documents originating from a non-objectively verifiable source submitted by an applicant in a subsequent application in so far as all documents have to be considered carefully and rigorously on an individual basis in order to ascertain whether they significantly add to the likelihood that the applicant qualifies as a beneficiary of international protection and in order to prevent a person from being expelled if he or she faces an individual and real risk of being subjected to treatment contrary to Article 19(2) of the Charter of Fundamental Rights of the European Union. 2. Article 40 of Directive 2013/32, read in conjunction with Article 4(2) of Directive 2011/95, cannot be interpreted as permitting a determining authority of a Member State, when assessing documents and assigning probative value to such documents, to distinguish between documents submitted in an initial application and those submitted in a subsequent application. A Member State, when assessing documents in a subsequent application, is obliged to cooperate with the applicant to the same extent as in the initial procedure.

11 February 2021 | Judicial Body: European Union: Court of Justice of the European Union | Document type: Case Law | Topic(s): Fresh / New claim - Refugee / Asylum law | Countries: Afghanistan - Netherlands

Supreme Administrative Court decision of 13 November 2020 - KHO:2020:4219

Given the individual assurances received by the Finnish Immigration Service from the Greek authorities that the appellant will be accommodated in a reception center that meets the require-ments of the Reception Conditions Directive and will be informed of the asylum procedure, there are no grounds for considering that the transfer to Greece is contrary to, nor have there been any reasons why, the appellant's application should be dealt with in Finland under the discretionary clause in Article 17 of the Dublin Regulation.

13 November 2020 | Judicial Body: Finland: Supreme Administrative Court | Document type: Case Law | Legal Instrument: 1951 Refugee Convention | Countries: Afghanistan - Finland - Greece

AFFAIRE N.H. ET AUTRES c. FRANCE (Requête no 28820/13 et 2 autres)

The French authorities had failed in their duties under domestic law. They were found responsible for the conditions in which the applicants had been living for several months: sleeping rough, without access to sanitary facilities, having no means of subsistence and constantly in fear of being attacked or robbed. The applicants had thus been victims of degrading treatment, showing a lack of respect for their dignity. The Court found that such living conditions, combined with the lack of an appropriate response from the French authorities and the fact that the domestic courts had systematically objected that the competent bodies lacked resources in the light of their status as single young men, had exceeded the threshold of severity for the purposes of Article 3 of the Convention. The three applicants N.H., K.T. and A.J. had thus found themselves, through the fault of the French authorities, in a situation that was incompatible with Article 3 of the Convention.

2 July 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment - Reception - Refugee status determination (RSD) / Asylum procedures | Countries: Afghanistan - France - Georgia - Iran, Islamic Republic of - Russian Federation

CASE OF M.S. v. SLOVAKIA AND UKRAINE (Application no. 17189/11)

The applicant complained that the Slovakian authorities, having arrested him after he had crossed from Ukraine, had failed to inform him of the reasons for his arrest, in violation of Article 5 § 2 of the Convention. They had then returned him to Ukraine, where he had been detained in inadequate conditions in disregard of his alleged status as a minor, in breach of Article 3. He had been unable to participate effectively in the proceedings concerning his detention, and had eventually been returned to Afghanistan in the absence of an adequate assessment of the risks he had faced there, in breach of Article 3, Article 5 §§ 1, 2 and 4, and Article 13 of the Convention. Lastly, he alleged, under Article 34, that an NGO representative had been denied access to him in Ukraine, preventing him from lodging an application for an interim measure with the Court.

11 June 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Children's rights - Expulsion - Freedom from torture, inhuman and degrading treatment - Immigration Detention - Legal representation / Legal aid - Rejected asylum-seekers | Countries: Afghanistan - Slovakia - Ukraine

J.I. v. Sweden

7.6 In the present case, the Committee notes the finding of the Migration Agency that, while claiming a risk of harm in Afghanistan because of his Christian faith, the author failed to present sufficient evidence to substantiate his claim that his faith had attracted the attention of: the Afghan authorities through his texts on social media networks and his appearance in the Swedish media; the staff members of the Afghan Embassy in Stockholm; and other Afghan detainees in the migration detention centre. The Committee also finds that although the author contests the assessment and findings of the Swedish authorities, he has not presented any evidence to the Committee to substantiate his claim that he has been targeted by the Afghan authorities on the basis of his Christianity, or that his alleged Christianity is indeed known to the Afghan authorities. 7.7 The Committee considers that the information at its disposal demonstrates that the State party took into account all the elements available when evaluating the risk of irreparable harm faced by the author upon his return to Afghanistan. The Committee also considers that, while the author disagrees with the factual conclusions of the State party’s authorities, he has not shown that the Migration Agency’s decision of 30 December 2015 was arbitrary or manifestly erroneous, or that it amounted to a denial of justice.

22 May 2020 | Judicial Body: UN Human Rights Committee (HRC) | Document type: Case Law | Legal Instrument: 1966 International Covenant on Civil and Political Rights (ICCPR) | Topic(s): Christian - Freedom from torture, inhuman and degrading treatment - Religious persecution (including forced conversion) | Countries: Afghanistan - Sweden

Amicus curiae of the United Nations High Commissioner for Refugees1 in case number 19-028135ASD-BORG/01 (represented by lawyer Arild Humlen) against the State/the Norwegian Appeals Board before the Borgarting Court of Appeal (Borgarting Lagmannsrett) on the interpretation of the 1951 Convention Relating to the Status of Refugees

10 April 2020 | Publisher: UN High Commissioner for Refugees (UNHCR) | Document type: Court Interventions / Amicus Curiae

CASE OF ASADY AND OTHERS v. SLOVAKIA (Application no. 24917/15)

The applicants alleged that their expulsion to Ukraine had been collective in nature and that they had not had an effective remedy in respect of it. In particular, they alleged that the State authorities had not carried out an individual assessment and examination of their cases and had denied them access to the asylum procedure.

24 March 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Access to procedures - Expulsion | Countries: Afghanistan - Slovakia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394

87 The Minister did not seek to justify PDWL’s continuing detention on any basis other than that a decision had been made under subs 189(1) of the Migration Act. For the reasons just given, subs 189(1) of the Migration Act can provide no justification for the continuing detention of PDWL. It follows that he is currently being unlawfully detained. That state of affairs should be immediately remedied. The appropriate remedy is an order that he be immediately released. I do not consider that it is necessary or useful to express that order in terms of the issue of a writ of habeas corpus, or an order in the nature of habeas corpus. As PDWL has been brought before the Court, it is unnecessary to direct that the Minister or any particular officer who is responsible for his detention release PDWL from detention. It is sufficient that I simply order his release forthwith.

17 March 2020 | Judicial Body: Australia: Federal Court | Document type: Case Law | Topic(s): Habeas corpus - Immigration Detention - Right to liberty and security | Countries: Afghanistan - Australia

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