Slovakia - Supreme Court of the Slovak Republic, 17 January 2012, M.S. v Ministry of Interior of the Slovak Republic, 1Sža/59/2011
Keywords:
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
Headnote:
In the opinion of the appellate court, one of the conditions required under Section 19(1)(i) of the Asylum Act for ruling that there is no need to adjudicate was not fulfilled. Despite the existence of a final decision dismissing the application as manifestly unfounded, it was not possible to agree with the opinion of the administrative authorities, as upheld by the Regional Court, that the facts had not changed substantially.
Facts:
The asylum applicant first requested asylum for economic reasons. His application was dismissed by the Migration Office of the Ministry of Interior of the Slovak Republic as manifestly unfounded. This decision was confirmed by the Regional Court in Košice and by a ruling of the Supreme Court of the Slovak Republic.
The applicant was subsequently returned to the territory of the Slovak Republic from Austria on the basis of the Dublin Convention. After returning, he again requested asylum, on the same grounds as in the earlier asylum procedure, but adding to his application a claim that land disputes with his uncles had a political context. The Migration Office again dismissed the application as manifestly unfounded. The Regional Court in Bratislava upheld the decision of the Migration Office and the Supreme Court also issued a ruling upholding the decision of the Migration Office.
The asylum applicant substantiated his third application with grounds similar to those in the earlier procedures, and also added the murder of his wife and son. The Migration Office ruled that there was no need to adjudicate. The applicant lodged an appeal with the Ministry of Interior of the Slovak Republic against the ruling that there was no need to adjudicate. The Ministry of Interior, however, dismissed the appeal.
In the final, fourth, asylum application, the applicant set out the same grounds as in the earlier asylum procedures, but added the claim that he had been accused of the rape and murder of a woman in his country of origin. It was allegedly the daughter of a man who had been employed by his family. According to members of the Akali Dal political party, the applicant had raped and murdered her. The police arrested him and forced him to confess to the crime. With the help of Congress Party members he was released on bail. Although he was not punished by the state authorities, the head of the Sikh temple in Amritsar, who was a supporter of Akali Dal, took justice into his own hands. They punished him by painting his face black, hanging a garland of shoes around his neck, sitting him on an ass and forcing him to ride four times around his village thus attired. He then felt ashamed and, as he was unable to remain at home, he left his country of origin. The Migration Office again ruled that there was no need to adjudicate. The applicant appealed against this decision, but the Ministry of Interior of the Slovak Republic dismissed the appeal and upheld the decision of the Migration Office. The applicant brought an action against this decision at the Regional Court in Bratislava, which dismissed the action. The applicant therefore filed an appeal against this judgment at the Supreme Court of the Slovak Republic on the grounds set out in Section 205(2)(f) of the Civil Procedure Code, thus on grounds of the incorrect legal assessment of the case.
Decision & reasoning:
The subject of the appeal procedure before the Supreme Court of the Slovak Republic was the judgment of the Regional Court in Košice confirming the decision of the Migration Office of the Ministry of Interior of the Slovak Republic to dismiss the appeal and to uphold the decision. The Supreme Court reviewed the judgment of the Regional Court as well as the procedure that preceded the judgment, and concluded that the judgment of the Regional Court had to be altered.
In the opinion of the Supreme Court of the Slovak Republic it was not possible to agree that the condition for a ruling that there is no need to adjudicate in an asylum procedure under Section 19(1)(i) of the Asylum Act had been met with regard to the absence of any substantial change to the facts, which was not evaluated in greater detail, and without such an evaluation it could not be claimed that the facts had not changed.
In the opinion of the appellate court, the facts had changed in that the plaintiff had stated a new fact in the asylum procedure, namely that he had been accused in his country of origin of rape and murder. The administrative authority did not examine the plaintiff's claim at all, and did not even deal with it in the manner that it deals with those accused of rape or murder. In the opinion of the appellate court, there was a failure to fulfil one of the conditions under Section 19(1)(i) of the Asylum Act, fulfilment of which was required for a ruling that there is no need to adjudicate in an asylum procedure. Despite the existence of a final decision dismissing the application as manifestly unfounded, it was not possible to agree with the opinion of the administrative authorities, as upheld by the Regional Court, that the facts had not changed substantially. In view of the failure to fulfil the conditions for a ruling that there is no need to adjudicate under Section 19(1)(i) of the Asylum Act the Regional Court should have thus set aside the defendant’s decision and referred the case back for a new assessment. The appellate court concluded that there were grounds for reversing the decision of the court of first instance, setting aside the defendant’s decision and referring the case back to that Court. The Supreme Court of the Slovak Republic considers it necessary for the administrative authority to eliminate the deficiencies in question in the next procedure.
Outcome:
The Supreme Court of the Slovak Republic reversed the decision of the Regional Court, setting aside the decision of the Ministry of Interior – Migration Office, and referring the case back to the Migration Office.
Observations/comments:
Senát zložený z predsedu senátu JUDr. Igor Belko a z členov Ing. JUDr. Miroslav Gavalec a JUDr. Elena Berthotyová PhD.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Slovakia - Zákon 480/2002 Zb. o azyle a o zmene a doplnení niektorých zákonov (Act No 480/2002 on asylum and amending certain other acts) - § 19(1)(i) |