Slovakia - Regional Court in Košice, 21 March 2012, Z. H. v Ministry of Interior of the Slovak Republic, 4Saz/3/2011
Keywords:
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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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." |
Headnote:
It is the duty of the administrative authority to establish all of the facts that are important in a procedure, and thus to complete the background information for a decision to the extent that it forms a reliable basis for the decision-making itself.
The administrative authority is not relieved of this duty even with regard to the provisions of Section 34(3) of Act No 71/1967 Coll. on administrative procedure (hereinafter the “Administrative Procedure Code“), according to which the participants in a procedure must put forward the evidence that is known to them in support of their claims.
Facts:
The applicant filed an application for asylum in the territory of the Slovak Republic together with her husband, and she derived her application from her husband, who was a Mujahedin sympathiser. The Migration Office refused to grant asylum to the applicant, and also refused to provide subsidiary protection. The applicant therefore appealed to the Regional Court in Bratislava, which upheld the appeal and referred the case back to the Migration Office.
In the following procedure the Migration Office again refused to grant the applicant asylum, but did provide subsidiary protection. The applicant did not agree with the negative decision on asylum and appealed to the Regional Court in Bratislava. The Regional Court in Bratislava upheld the decision of the Migration Office, and the applicant therefore appealed to the Supreme Court of the Slovak Republic, which set aside the decision in so far as it did not provide subsidiary protection.
After the case was referred back to the Migration Office the applicant was again refused asylum and so she appealed against this decision to the Regional Court in Bratislava. The Regional Court in Bratislava set aside the decision of the Migration Office referred the case back to the Migration Office.
After the case was referred back to the Migration Office for the fourth time, the applicant was again refused asylum, and she therefore appealed to the Regional Court in Košice.
Decision & reasoning:
The Regional Court in Košice found that the defendant had failed to establish the facts of the case sufficiently in the administrative procedure in all respects, particularly in terms of the applicant’s future family life in case of her return to her country of origin – Iran, and thus failed to deal with all of the facts stated by the applicant during the asylum procedure in accordance with the provisions of Section 32(1) of the Administrative Procedure Code. It is the duty of the administrative authority to establish all of the facts of importance in a procedure, and thus to complete the background information for a decision to the extent that it forms a reliable basis for the decision-making itself. The administrative authority is not relieved of this duty even with regard to the provisions of Section 34(3) of the Administrative Procedure Code, according to which the participants in a procedure must put forward the evidence that is known to them in support of their claims.
The appellate court thus in relation to the wording of the aforementioned provisions of the Administrative Procedure Code fully agreed with the objection raised in the appeal by the applicant’s legal representative concerning the absence of relevant information on the persecution of women and the persecution of men in Iran in the statement of reasons for the contested decision. It is true that the applicant, throughout the entire asylum procedure before the defendant, supported her application with coherent, consistent and likely explanations, and the administrative authority ultimately even said as much in the statement of reasons. The only reason she gave in her application for asylum in the territory of the Slovak Republic was fear of the persecution of her husband by the government in Iran.
With regard to the reason consistently given in the asylum application, the defendant should have addressed the relevant reports on the applicant’s country of origin relating to the persecution of women (as well as other family members) in situations where the government of the country of origin is persecuting other family members (in this case the head of the family). The Regional Court could not accept the relatively brief statement of the administrative authority on the form of the state system together with the general information on the inhabitants, religion, economics and political situation in the reasoning of the decision as an adequate determination of the facts. In view of the fears of persecution expressed by the applicant, the conclusions of the defendant appeared to the Regional Court to be clearly inadequate.
For the above reasons, the Regional Court in Košice considered this objection of the applicant’s legal representative, as stated in the appeal, to be well-founded and therefore upheld the appeal, and reversed the defendant's decision not to grant asylum in the territory of the Slovak Republic within the meaning of the provisions of Section 250j(2)(c) of the Civil Court Code since the defendant’s findings of fact were not adequate for an assessment of the case.
In addition to the inadequate findings of fact, the defendant’s contested decision also had to be set aside for objective reasons, since at the time of deciding on the applicant’s appeal, the administrative authority had decided in the case of the application of the applicant's husband, under decision ČAS: MU-468-89/PO-Ž-2007 of 23.01.2012, within the meaning of the provisions of Section 8(a) and Section 20(2) of the Asylum Act, to grant him asylum in the territory of the Slovak Republic. In this decision, the administrative authority clearly set out the real and well-founded fears of persecution in Iran of the applicant’s husband and of the threat to his life if he returned to his country of origin.
The objection of the applicant’s legal representative that the defendant had failed to take account of and deal with the substantiated information she had placed in the administrative file prior to the issuing of the decision was not regarded by the Regional Court as well-founded, since the defendant referred in the reasoning of the contested decision to the submitted reports in question and briefly took proper account of them.
In the opinion of the appellate court, in light of the new and substantially relevant information on the applicant’s country of origin, as well as the defendant’s decision ČAS: MU-468-89/PO-Ž-2007 of 23.01.2012 in the case of the applicant’s husband, it was necessary to re-assess the reasons asserted by the applicant in the asylum application, with reference also to the decision of the Supreme Court of the Slovak Republic (1 Sža/57/2010), and to focus, with regard to the principle of family unity, particularly on the possibility of granting asylum for the purposes of family unity under Section 10(1)(a) of the Asylum Act.
The duty of the administrative authority will be to address these facts again thoroughly, to evaluate them properly and to decide again whether or not to grant asylum to the applicant in the territory of the Slovak Republic.
Outcome:
The Regional Court in Košice set aside the decision of the defendant – the Migration Office of the Ministry of Interior of the Slovak Republic – and referred the case back to the defendant.
Subsequent proceedings:
The Migration Office of the Ministry of Interior of the Slovak Republic granted asylum to the applicant in the subsequent procedure.
Observations/comments:
JUDr. Marianna Hrabovecká