Asylum procedure in Europe has been examined in three recent decisions. In two, the European Court of Human Rights found actual or imminent violations of Article 3 of the European Convention on Human Rights. In the other, the Court of Justice of the European Union considered the proper interpretation of ‘political opinion’ as a reason for persecution.

WA and others v Hungary

The first case, WA and others v Hungary (application nos 64050/12, 64558/16, 66064/13), concerned three Syrian asylum seekers who had entered Hungary from Serbia. Their claims were quickly rejected as inadmissible, and they were returned to Serbia on the basis that it was a safe third country in which they could enjoy international protection.

They challenged their removal in the European Court of Human Rights, arguing that Hungary had failed to discharge its Article 3 procedural obligations not to send them to a country in which they would be unable to access the asylum system and from which they may be subject to arbitrary refoulement.

The court followed its earlier approach in Ilias and Ahmed v Hungary (application no. 47287/15), a case with materially identical facts. There, it held that a state could only remove an asylum seeker to a third country without considering their claim if it had first conducted a “thorough examination of the relevant conditions in the third country concerned and, in particular, the accessibility and reliability of its asylum system”.

Hungary had not conducted such an examination, relying simply on Serbia being an EU candidate country that was bound by the relevant international conventions, and on the need to take measures to deal with “an unprecedented wave of migration”. Notably, the court had not had regard to relevant country information, including UNHCR reports. As the country information and domestic law were the same in WA and others, it saw no reason to depart from Ilias and Ahmed, and accordingly found a violation of Article 3.

Incidentally, Ilias and Ahmed also played a prominent role in AAA v Secretary of State for the Home Department [2022] EWHC 3230, the High Court’s December judgment in the Rwanda litigation. The Court found that the UK government had undertaken the necessary “thorough examination” of Rwanda as a safe third country. You can read more about that judgment here.

Ultimately the High Court in AAA may not have sufficiently engaged with any criticisms of Rwanda country information or asylum policy on the basis that the Home Secretary only had to examine the available information. Permission to appeal against that aspect of the judgment appears to have been refused. You can read more about where the Rwanda litigation is at now here, including on what grounds permission to appeal and permission to apply for judicial review were granted.

SH v Malta

The second case, SH v Malta (application no 37241/21), concerned Malta’s handling of an asylum claim by SH, who claimed to be at risk in Bangladesh due to his work as a journalist. He argued that Malta had breached its Article 3 procedural obligation to protect him against arbitrary refoulement, and its obligation under Article 13 to provide an effective remedy in respect of his Article 3 claim.

The Court found numerous defects in Malta’s approach in this case. SH had been denied access to a lawyer in detention. The decision refusing his claim unfairly criticised him for lacking detail in interview and an inability to identify the exact Bangladeshi law said to put him at risk. It took no account of the documents he had provided, on the basis that they were copies rather than originals. This, the Court held, failed to afford SH the benefit of the doubt.

The difficulties were compounded by the fact that, under Malta’s accelerated asylum procedure, the refusal decision was considered and upheld by a Tribunal in less than 24 hours. This enabled only a ‘superficial’ assessment and no opportunity for SH (or his lawyer, if he had one) to make meaningful submissions. It was noted that of 482 Tribunal reviews in 2021, all but three simply endorsed the initial decision. SH wasn’t even informed of the Tribunal’s decision until several months later.

The European Court of Human Rights found that the cumulative effect of the above factors meant that SH had been denied the independent and rigorous scrutiny of his claim that the Convention required. Malta had therefore breached Article 13 and would breach Article 3 were it to return him to Bangladesh without first reassessing his asylum claim.

PI v Migracijos departamentas prie lietuvos Respublikos vidaus reikalu miniterijos

In PI v Migracijos departamentas prie lietuvos Respublikos vidaus reikalu miniterijos [2023] EUECJ C-280/21 the Court of Justice of the European Union considered the meaning of ‘political opinion’ in Article 10 of Directive 2011/95/EU (‘the Qualification Directive’). PI claimed that a group connected with the state had instigated fabricated criminal proceedings against him in order to intimidate him after he had launched separate proceedings challenging their conduct. The question referred to the court was whether opposition to a group in these circumstances constituted an ‘attributed’ (or imputed) political opinion. If it did, then PI potentially qualified for refugee status.

In considering this question, the court referred to Article 10(1)(e) of the Qualification Directive, which states:

“[T]he concept of political opinion shall, in particular, include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.”

The court noted that this necessitated a broad interpretation of ‘political opinion’, consistent with the obligation under Article 11 of the European Charter of Fundamental Rights to protect freedom of expression, including the receiving and imparting of information and ideas without interference by public authorities. In particular, it drew attention to its earlier judgment in Ahmedbekova v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite  [2018] EUECJ C-652/16 that the bringing a claim to the European Court of Human Rights could fall within ‘political opinion’ if it led to retaliatory action from the state for perceived dissent. The court accepted PI’s argument that his claim, if proven, amounted to persecution for an imputed political opinion.

As a post-Brexit decision on a Lithuanian referral, PI is not binding in the UK. However, the Qualification Directive’s definition of ‘political opinion’ is replicated in regulation 6(1)(f) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which remain in force. The court’s views are therefore persuasive. They are also consistent with the Upper Tribunal’s recent conclusions in EMAP (Gang violence, Convention Reason [2022] UKUT 335 (IAC) regarding opposition to the major gangs of El Salvador.