Portugal: Administrative Litigation Section of the Central Administrative Court, 10/12/2019, proc. nº 1026/19.6BLESB
| Country of Decision: | Portugal |
| Court name: | Tribunal Central Administrativo Sul |
| Date of decision: | 10-12-2019 |
| Citation: | Proc. nº 1026/19.6BLESB - Tribunal Central Administrativo Sul |
Keywords:
| Keywords |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The applicant brought an administrative action before the Administrative Court of the Circuit of Lisbon against the Ministry of Internal Affairs - Foreigners and Borders Service (SEF), in which he sought the annulment of the decision of the National Director of the SEF determining his transfer to Italy and the condemnation of the requested entity in the continuation of the process of international protection.
The Central Administrative Southern Court dismissed the appeal and, on grounds other than those set out in the contested judgment, upheld the decision to annul the decision of the National Director of SEF.
Facts:
On April 2019, the applicant applied for asylum in Portugal. After consulting the EURODAC system, the Portuguese authorities found two positive hits from the Italian State regarding the applicant.
On May 2019, the National Director of the Service of Foreign and Borders issued an order, in which she considered the request submitted by the applicant to be inadmissible and that a transfer to Italy should be made in accordance with the Dublin III Regulation.
Decision & reasoning:
The Court divided the reasoning into two main topics. First, the Court analysed if the appeal should be dismissed due to the absence of conclusions, then, if the contested decision was subject to error of judgment.
The applicant claimed that the conclusions presented by the original Court did not fulfil the burden imposed by the Procedural Civil Code to present synthetic conclusions in a proper reasoning.
Although the Court agrees that the original Court used overly long-winded conclusions, it was still possible to clearly infer its reasons; this claim should therefore be dismissed.
In the contested decision, the Service of Foreign and Borders understood that they should have prepared a written report with the essential information related to the application and to notified it to the applicant. Since it did not happen, they annul the decision. However, this is a specific determination that does not apply to this specific case.
Nonetheless, the prior hearing was defective. According to the Court, this is the correct reason for the annulment.
Therefore, the appeal was dismissed and the annulment decision maintained, although with different reasons for the decision under appeal.
Outcome:
Appeal dismissed; decision maintained with different reasoning.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| 37 |
| 36 |
| 17 |
| 19 |
| Art. 16 |
| 84 Law 27/2008 |
| Art. 267 Constitution |
| Art. 12 |
| 121 |
| 124 |
| 163 Administrative Procedural Code |
| Art. 16 Law 23/2007 |
| Art. 639 Procedure Civil Code |
Other sources:
Domestic Case Law cited
- Supreme Administrative Court, 3/07/2011, proc. n.º 0840/10,
- Supreme Administrative Court, 23/10/2014, proc. n.º 625/14,
- Supreme Administrative Court, 20/11/2014, proc. n.º 0816/14,
- Supreme Administrative Court, 20/01/2015, proc. n.º 1058/14,
- Supreme Administrative Court, 19/11/2015, proc. n.º 1120/14,
- Supreme Administrative Court, 28/04/2016, proc. 0209/16,
- Supreme Administrative Court, 19/05/2016, proc. n.º 0203/16,
- Supreme Administrative Court, 17/05/2018, proc. n.º 1273/16,
- Supreme Administrative Court, 0/05/2019, proc. n. º 0970/18.2BELSB
- Supreme Administrative Court, 05/09/2019, proc. n. º 01724/18.1BELSB,
- Admin Court South, 6/06/2019, proc. nº 90/19.2BELSB
- Admin Court South, 04/07/2019, proc. n. º 2379/18.9BELSB
- Admin Court South, 06/06/2019, proc. n.º 2240/18.7BELSB,
- Admin Court South, 22/08/2019, proc. n.º 1982/18.1BELSB,
- Admin Court South, 26/09/2019, proc. n.º 557/19.2BELSB,
- Admin Court South, 21/11/2019, proc. n. º 401/19.0BELSB,
- Admin Court South, 21/11/2019, proc. n. º 1059/19.2BELSB
- Admin Court South, 21/11/2019, proc. n. º 1157/19.2BELSB
Other Sources
- Informação nº 17…/GAR/2018 do Gabinete de Asilo e Refugiados do Serviço de Estrangeiros e Fronteiras
- Informação do SEF n.º 76…/GAR/2019