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Key Words Archives: Procedural rights

Case No. 8941/2019 before the Supreme Administrative Court of the Republic of Bulgaria, Judgment No. 1277 of 27 January 2020

The administrative body had discussed only the mother’s refugee story, without providing reasoning for its decision to refuse status to her children. The Court concludes that the administrative body did not respect and protect the best interests of the children: failing to consider the individual circumstances of the children is a significant violation of the administrative procedural rules.

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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 (recast)

The recast “Asylum Procedures Directive” is a recast of a previous Directive (Council Directive 2005/85/EC of 1 December 2005), with implementation deadline of 20 July 2015. The Directive sets up common procedures for granting and withdrawing international protection (refugee status and the protection given to people who are not refugees but who would risk serious harm if returned to their country of origin). The Directive enshrines the presumption of minority and further provides requirements on how age assessment should be carried out (art. 25).

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General comment No. 5 (2021) of the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) on migrants’ rights to liberty, freedom from arbitrary detention and their connection with other human rights (advanced unedited version)

The UN Committee in its General Comment understands as ‘alternatives to detention’ all community-based care measures or non-custodial accommodation solutions – in law, policy or practice – that are less restrictive than detention and which must be considered in the context of lawful detention decision procedures to ensure that detention is necessary and proportionate in all cases, with the aim of respecting the human rights and avoiding arbitrary detention of migrants, asylum seekers, refugees and stateless persons.

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Human Rights Council, Report of the Working Group on Arbitrary Detention (WGAD) of 24 December 2012

The WGAD Report concerns the definition and scope of arbitrary deprivation of liberty under customary international law. The Group found that the prohibition of all forms of arbitrary deprivation of liberty is part of the international jus cogens. Detention of migrants and asylum seekers is recognized as a form of deprivation of liberty and States should ensure the same guarantees available against arbitrary arrest and detention.

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CJEU, Bashir Mohamed Ali Mahdi case, Case no. C-146/14 PPU, 5 June 2014

The CJEU said that immigration related detention is justified only in order to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient. Only the judicial authority should deal with the decisions concerning the detention of a third-country national (for example an extension) and it should do so following a thorough assessment of all relevant facts and circumstances in the individual case.

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UN Human Rights Committee (CCPR), A. v. Australia, Communication 560/1993, Views of 3 April 1997

The UN Human Rights Committee stated that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.

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