Czech Republic - Supreme Administrative Court, 25 January 2013, T.T.P. v. Ministry of the Interior, 5 Azs 7/2012-28
| Country of Decision: | Czech Republic |
| Country of applicant: | Vietnam |
| Court name: | Supreme Administrative Court |
| Date of decision: | 25-01-2013 |
| Citation: | 5 Azs 7/2012-28 |
Keywords:
| Keywords |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
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More favourable provisions
Description
Many of the instruments of the EU asylum acquis currently set out only minimum standards. “It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions”. According to Article 5 of the Asylum Procedures Directive: “Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status, insofar as those standards are compatible with this Directive.” Similarly, according to Article 4 of the Reception Conditions Directive: “Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.” |
Headnote:
It is the duty of the administrative body to deal reasonably with objections to intrusion into the private and family life of the applicant within international protection proceedings.
Facts:
The applicant from Vietnam applied for international protection in the Czech Republic after her stay in the territory had not been prolonged. She applied on the grounds that her husband and son were to stay in the Czech Republic based on permission to stay in the long-term, and so could not return to Vietnam.
Decision & reasoning:
It is the duty of the administrative body to deal reasonably with objections to interference in the private and family life of the applicant within the international protection proceedings, since a violation of an international obligation may be, pursuant to the Asylum Act, reason for granting subsidiary protection (in the case of humanitarian asylum). If the administrative body states that no interference to the family life of the applicant is caused by her leaving the country, which would be in violation of Article 8 of the European Convention on Human Rights, then such conclusions have to be based on factual conditions. In this case, the applicant stayed in the Czech territory with her husband and underage son and has no one in Vietnam. Her husband has lived in the Czech Republic for more than 20 years, keeps a business and supports all the family. The applicant used to look after their son who was not yet three years old. It is not proved that family life could be maintained in Vietnam. The administrative body must evaluate the legal and factual obstacles faced in leaving the country, typically a degree of dependency upon the family breadwinner in the Czech territory, the age of the minor, and the conditions of the family background in Vietnam. Automatic conclusions by the defendant that no breach of Article 8 of the Convention will be caused by the applicant leaving the country cannot be accepted without thorough examination and for this reason, the conditions for granting subsidiary protections are not met.
Outcome:
Judgment and decision of the administrative court is revoked.
Observations/comments:
In the Czech Republic, serious harm in the case of leaving the country according to the definition in Article 14(2)(d) of the Asylum Act may mean "violation of the international obligations of the Czech Republic". Applicants typically invoke this provision in cases where they consider that their leaving the country would interfere with their private and family life pursuant to Article 8 of the Convention. This is a purely national adaptation that exceeds the Qualification Directive. However, with regard to Article 3 of the Qualification Directive that enables the member states to implement more favourable provisions, the adaptation is compatible with the directive.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 14a(2) |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 14 |