Common European Asylum System in a Changing World

Membership in a Particular Social Group

• In the joined cases, Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) [1999] (H.L.) (appeal taken from England) (U.K.), the U.K. House of Lords held that women in Pakistan constituted a social group, granting asylum to two women from Pakistan who had fled domestic violence. Non-refoulement • Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January 2011 The ECtHR held that the Belgian government had violated an asylum seeker from Afghanistan’s rights under Article 3 of the ECHR by returning him to Greece, the country he had initially transited through, to adjudicate his asylum claim because it was common knowledge that the Greek government lacked adequate asylum procedures, thus, placing the applicant at risk of being returned to Afghanistan where his life or freedom would be in danger. • Savran v. Denmark , no. 57467/15 ECHR [GC] judgment, 1 October 2019 The case deals with the question of appropriate medical treatment in the receiving state. A Turkish national moved to Denmark in 1991 when he was six years old. In 2007, the applicant was convicted for assault under highly aggravating circumstances and sentenced to seven years imprisonment and expulsion from Denmark. The Danish courts upheld the removal order, stating that the applicant needs regular psychiatric help. The ECHR disagreed, stated that there is “a high threshold for the application of Article 3 in cases involving the removal of migrants suffering from serious illness.” The host state must verify on a case-by-case basis whether the care generally available in the receiving state is sufficient and appropriate to prevent a violation of Article 3. Factors to be taken into account in this regard are: the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care. Exclusion Clauses  Terrorism, war crimes and crimes against humanity • A.B. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform , [2011] IEHC 198 [2008] 667 Ir. Jur. Rep. (5 May 2011) (H.Ct.) (Ir.): The Irish High Court granted leave to apply for judicial review where the Refugees Appeals Tribunal had failed to conduct an adequate assessment of whether a former Taliban commander had personally participated in war crimes and crimes against humanity. The Court adopted the standard articulated in Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v. B und D [2010] ECR I-000, whereby there is a permissive presumption that any person who occupied a high position within a terrorist organization participated in the activities articulated in Article 1F of the 1951 Convention but authorities must, nonetheless conduct an assessment to determine the role the individual personally played in carrying out such acts.

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