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Case Law

Case Law includes national and international jurisprudential decisions. Administrative bodies and tribunals are included.
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CASE OF KHANH v. CYPRUS (Application no. 43639/12)

4 December 2018 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment - Prison or detention conditions | Countries: Cyprus - Viet Nam

Minister of Home Affairs v Ali (1289/17) 2018 ZASCA 169

Citizenship Amendment Act 17 of 2010 - interpretation of s4(3) of the Act - section does not have a retrospective effect - respondents satisfy the requirements of citizenship by naturalisation - failure of the Minister to promulgate regulations for applications for citizenship in terms of s 23 of the Act - the order of the high court directing the Minister to accept applications on affidavits does not encroach upon the doctrine of separation of powers

30 November 2018 | Judicial Body: South Africa: Supreme Court of Appeal | Topic(s): Citizenship / Nationality law - Naturalization - Statelessness | Countries: South Africa

Ahmad Shah Ayubi v Bezirkshauptmannschaft Linz-Land (C‑713/17) (request for preliminary ruling)

1. Article 29 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 meaning that it precludes national legislation, such as that at issue in the main proceedings, which provides that refugees with a temporary right of residence in a Member State are to be granted social security benefits which are less than those received by nationals of that Member State and refugees who have a permanent right of residence in that Member State. 2. A refugee may rely on the incompatibility of legislation, such as that at issue in the main proceedings, with Article 29(1) of Directive 2011/95 before the national courts in order to remove the restriction on his rights provided for by that legislation.

21 November 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Economic, social and cultural rights - Refugee / Asylum law | Countries: Austria

Decision 201701423/1/V2

21 November 2018 | Judicial Body: Netherlands, The: Council of State (Raad van State) | Topic(s): Gender-based persecution - Persecution based on political opinion - Religious persecution (including forced conversion) - SGBV - Women's rights - Women-at-risk | Countries: Afghanistan - Netherlands

Applicant v. State Secretary for Security and Justice

12 November 2018 | Judicial Body: Netherlands, The: The Hague District Court | Topic(s): Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) - Internally displaced persons (IDPs) - Safe country of origin | Countries: Netherlands - Ukraine

AFFAIRE K.G. c. BELGIQUE (Requête no 52548/15)

Non-violation de l'article 5 - Droit à la liberté et à la sûreté (Article 5-1 - Arrestation ou détention régulières)

6 November 2018 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Arbitrary arrest and detention - Right to liberty and security | Countries: Belgium - Sri Lanka

Supreme Administrative Court decision of 2 November 2018 - KHO:2018:147

2 November 2018 | Judicial Body: Finland: Supreme Administrative Court | Topic(s): Armed forces / Military - Burden of proof - Exclusion clauses | Countries: Finland - Syrian Arab Republic

ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 00335 (IAC)

1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594. 2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof. 3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.

29 October 2018 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Topic(s): Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) - Social group persecution - Standard of proof - Trafficking in persons | Countries: Albania - United Kingdom of Great Britain and Northern Ireland

CASE OF A.N. AND OTHERS v. RUSSIA (Applications nos. 61689/16 and 3 others – see appended list)

Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Tajikistan) Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan) Violation of Article 5 - Right to liberty and security (Article 5-1-f - Extradition)

23 October 2018 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment | Countries: Russian Federation - Tajikistan - Uzbekistan

case C-662/17

On 18 October, the Court of Justice of the European Union (CJEU) delivered its judgment on a preliminary reference submitted by the Slovenian Supreme Court, on the difference between refugee and subsidiary protection statuses. The need for a preliminary ruling arose in the context of asylum proceedings, where a minor national of Afghanistan was granted subsidiary protection status, following several unsuccessful legal challenges. When the issue was brought before the Supreme Court of Slovenia, the domestic judges decided to refer a question to the CJEU regarding the admissibility of the applicant’s appeal against his subsidiary protection status in the context of sufficient interest, according to Article 46 (2) of Directive 2013/32/EU. The question was centred on the difference in cessation and duration requirements of the two statuses, as well as the ancillary rights thereof. The Court first noted that the recitals of Directive 2011/95/EU indicate that EU legislators intended to establish an integral framework for all beneficiaries of international protection, save for objectively necessary exceptions for beneficiaries of subsidiary protection status. After analysing the content of Article 47 of the Charter of Fundamental Rights, the Court stated that this article sets a requirement for a restrictive interpretation of any exception from the right to an effective remedy before a court, such as the one introduced by the aforementioned article of Directive 2013/32/EU. As such, for a subsidiary protection beneficiary’s action to be deemed inadmissible due to lack of sufficient interest, the rights and benefits granted must indeed be the same as those the applicant would enjoy if they held refugee status, even if the difference only encompasses ancillary rights. Moreover, a difference between the duration of the two statuses has to be regarded as difference in rights and benefits that justifies an admissible legal challenge. Lastly, any relevant assessment on the existence of different rights and benefits for international protection beneficiaries should not depend on the appellant’s individual situation, but rather on an overall assessment of national legislation. According to the Court’s restrictive interpretation, this is dictated by the text of Article 46 (2), as well as the need for the predictability of this legal provision, which would vary unacceptably according to each applicant’s personal circumstances. ELENA Weekly Legal Update - 19 October 2018

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

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