Portugal: A. v. Immigration and Borders Service, National Director, 17 November 2016 No. 0408/16
| Country of Decision: | Portugal |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Administrative Court |
| Date of decision: | 17-11-2016 |
| Citation: | A. v IBS [2016] 0408/16 |
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
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. |
Headnote:
The Court found that the new DL 34/2008 in no way affects the legal regime established by the previous Law 27/2008, which secures the right to a legal procedure free of judicial costs in asylum claims. The Law 27/2008, altered by the new Law 26/2014, does not establish a cost exemption, which, if it did, would be then regulated by the DL 34/2008.
Facts:
The applicant filled a judicial action against the Immigration and Borders Service decision of non-admissibility of their application for asylum or subsidiary protection, requesting its annulment.
The Central Administrative Court of Lisbon dismissed the applicant’s legal action. The applicant appealed to the Southern Central Administrative Court.
Decision & reasoning:
Article 84.º of the Law 27/2008 originally stated that legal actions concerning the admissibility or non-admissibility of asylum or subsidiary protection, would be free of judicial costs both in the administrative as well as the judicial phase of the process (for both the applicant and the Public Administration). The contested decision ruled that that Law was revoked by the DL 34/2008, which revoked judicial cost’s exemptions established in every field of law for both public and private entities. The previous court’s decision assumed that the case concerned one of those cost’s exemptions.
In this decision the court has reached the conclusion that the case does not concern cost exemption, which would indeed be regulated by the DL 34/2008. In fact, there was a legislative amendment to the Law 27/2008, by the provisions of the new Law 26/2014; according to Article 84.º in its present form, the legal actions for admissibility or non-admissibility of asylum or subsidiary protection are free of judicial financial charges and assume an urgent character. In both versions this law confirms that the type of legal actions it regulates are free of judicial costs, it does not establish a cost’s exemption. Therefore, the new Procedural Costs Regulation approved by the DL 34/2008 is not applicable to this case.
Article 84º of the Law 27/2008 takes into consideration the state of vulnerability asylum applicants find themselves in. That is the main ratio decidendi of the legislative body. The legislator intended to maintain the free access to asylum-related legal actions, since article 84º was not altered by the new Law 26/2014.
Outcome:
Appeal granted.
Observations/comments:
The right to free legal aid in asylum claims is recognized by European Law provisions as a fundamental right, which needs to be granted to those seeking to enter in another country so there are proper guarantees of the existence of a fair trial. Those seeking asylum are under a vulnerable economic situation since there is a high probability that they will not have the financial possibility to cover expenses related to court’s procedures and representation by a lawyer.
This ruling had the purpose of harmonizing national jurisprudence concerning the existence of a national understanding on procedural costs occurring in asylum claims, parallel to the one we can find in European Law provisions.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Law 27/2008 |
| from 5 of May |
| from 30 of June |
| DL 34/2008 |
| from 26 of February: |
| Law 26/2014 |
Other sources:
Domestic Case Law cited
Portugal: Supreme Administrative Court, A. v. Public Security Police, National Direction, 18 June 2015 No. 061/15