EU Asylum law

•  systemic flaws in the asylum procedure and in the reception conditions for applicants in the responsible member state, resulting in a risk of inhuman or degrading treatment

• Detention in order to secure transfer procedures

• Significant risk of absconding?

• Individual assessment (no standard form)

• Proportionality test (as short a period as possible)

under 18, 

familiy member or sibling, legally present

any relative legally present and that realtive can take care of minor

 minor children, spouse and if the parents or responsible adult for minor (realtion already existed in country of origin)

for minor also other person responsible for him by law

yes art. 18 para 9, but the basic need always have to be covered. If not enough housing, you have to give money to rent a "normal" flat. 

Asylum and migration management regulation

after ww2 large movements of refugees. only for europeans and only before 1951 at the start

yes if its really hard!

danger to the people in host country, conviction of serious crime or other reason

in charge for all is

1. the memberstate with responisbility for most of them according to the criteria

2. or subsidiarily memberstate responsible for the oldest one

rebuttable

normally not, but you have to check if minor or there are familiy members

you can do a take back procedure

european court of justice = application of eu-law

european court of human rights = application of conventino on human rights

(length of residence permit, social assistance)

when persecutin starts, while you're already in the other country. 

Could be problematic with causality, but tribunals say its ok

• threat to life or freedom on account of one of the 5 reasons is always persecution

• Other serious violations of human rights

•  Persecution still effective and up-to-date?

Accountability theory (state agents) vs. protection theory (non-state

actors, if the state is unwilling or unable to provide protection) 

Apply protection theory, also non state actors who persecute

1. Race

2. Religion

3. Nationality

4. Membership of a particular social group

5. Political opinion

1. Protected characteristics approach: group is united by an immutable

   characteristic or by a characteristic that is so fundamental to human

   dignity that a person should not be compelled to forsake it

2. Social perception approach: group shares a common characteristic

   which makes them a cognizable group or sets them apart from society at large

• situation in each of the countries must be examined (as these persons can avail themselves of the protection of another country)

•  D – Persons already receiving UN protection or assistance (examples: UNKRAKorea, UNWRAPalestine)

•  E – Persons who are not in need of international protection (person has taken residence in the country and enjoys same rights as nationals)

•  F – Persons that are considered not to be deserving of international protection (unworthy persons)

Crimes against peace, war crime or crimes against humanity (international instruments, e.g. Rome Statute of the International Criminal Court)

Common crimesprotection of the population of the host country

Acts contrary to the purposes and principles of the United Nations (Preamble, art. 1, 2 United Nations Charter – position of power of the person?)

•  Changes in the situation that have been brought about by the refugee himself (clauses 1-4)

1. Voluntary re-availment of national protection

2. Voluntary re-acquisition of nationality

3. Acquisition of a new nationality

4. Voluntary re-establishment in the country where persecution was

   feared

• Changes in the country where the persecution was feared (clauses 5- 6)

• Reasons for becoming a refugee have ceased to exist (Transitory changes not sufficient)

Non- refoulement (CG) (weak, art. 33 abs. 2 GC)

Non - refoulement (Human Rights)

Explicit  non- refoulement

non- Implicit refoulement

no they always have to be applied in connection to something else. For. ex. art. 3 ECHR

Yes, a small child has no where to go, so its not necessary to detain it. 

With a older child maybe not

Yes but only if the deases is already far advanced. 

Conditions have to be very severe. Not enough if you are just treated like everybody else in that country.

also when applying dublin, the non refoulement principles have to be checked. 

Parallel case decided by the European court of justice. They also said greece is not safe and this presomption of safty must be possible to prove the opposit.

Also important if the procedures do not work for big familiy for example. (Italy case)

No procedure so violation of  Art. 13 ECHR. but can only be applied with another art.

They were not facing inhuman treatment in the countries of origin and also not in marcco. So a risk of art. 3 can be excluded. 

Art. 4 prot. 4 ? The idea of having a collective procedure is prohibited. 

Court said art. 4 prot. 4 not appicable, because they did not use the legal options. You can not benefit from art. 4 prot. 4 if you behave illegaly (large groups cross boarder at night).

Only applicable if oyu have used all the legal options. you can not benefit fro ARt. 4 prot. 4 if you behave illegaly. for example in large groups during the night.

Very problematic!

Legal behaviour was never a condition!