Czech Republic - Supreme Administrative Court, 28 November 2008, P.T. v Ministry of the Interior, 5 Azs 46/2008-71
| Country of Decision: | Czech Republic |
| Country of applicant: | Ukraine |
| Court name: | Supreme Administrative Court |
| Date of decision: | 28-11-2008 |
| Citation: | 5 Azs 46/2008-71 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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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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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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. |
Headnote:
Examining the application as manifestly unfounded requires a three-stage test: (1) whether there is a risk of expulsion abroad or extradition of the person, (2) whether the Applicant could have filed the application sooner, (3) whether it is obvious from the steps taken by the Applicant that they had filed the application with the sole intention of avoiding imminent expulsion or extradition.
Article 9 of the European Convention on Human Rights does not have, for instance, extraterritorial effect in comparison with Articles 3 and 8 of the same Convention. The return of an individual to a country where he is threatened with constraints on his religious freedom, which do not reach the level of interference with his rights pursuant to Article 3 of the Convention, is not in contradiction with the Convention. Such a return cannot even represent prima facie serious harm for the purpose of examining subsidiary protection.
Facts:
The Applicant, who came from the Ukraine, said he had a car accident in the Ukraine. The owner of the other car demanded compensation in the amount of EUR 10,000 from him and threatened him. The Applicant did not go to the state authorities, since the owner of the damaged car was a prosecutor for the Rovno area.
In the case of return to the country of his origin, the Applicant was afraid of (1) actualisation of threats in relation to the car accident, (2) possible health risks resulting from staying in the area affected by the accident at Chernobyl, and (3) harm resulting from his conversion from the Eastern Orthodox religion to the Evangelical religion.
The Ministry of the Interior refused the application as manifestly unfounded.
The Regional Court in Ostrava rejected the case.
The Applicant filled a cassation complaint with the Supreme Administrative Court.
Decision & reasoning:
The Supreme Administrative Court first referred to its judgment of 15 August 2008, Azs 24/2008- 48, in which it deduced that from Articles 13 and 18 of the Qualification Directive in combination with Article 23(4)(i) and (j) of the Procedures Directive, the application for international protection may be examined as manifestly unfounded if the applicant completes the application “only” in order to defer or obstruct the execution of a previous or forthcoming decision that would lead to their expulsion.
The use of the provisions of Article 16(2) of the Act on Asylum (manifestly unfounded application) requires a three-stage test: (1) whether expulsion or extradition to another country for prosecution for a criminal offence is imminent for the Claimant, (2) whether the Claimant could have completed their application for international protection sooner, and (3) whether it is obvious from the steps taken by the Claimant that they had completed the application for international protection “only” with the intention of avoiding imminent expulsion or extradition abroad for prosecution for a criminal offence. These three conditions must be met in a cumulative manner.
In this instance, the Claimant had been staying in the Czech Republic for three years and he admitted that he had known about the possibility of filing an application for international protection. These two factors significantly lower the trustworthiness of the Claimant, yet they are not decisive in themselves. The Court therefore examined the Applicant’s by applying Article 12 (conditions for granting the asylum) and Article 14a (conditions for granting subsidiary protection) of the Act on Asylum.
In relation to the alleged harm connected with the Claimant’s conversion from the Eastern Orthodox religion to the Evangelical religion, the Supreme Administrative Court pointed out that the European Court of Human Rights has never stated that the return of an individual to a country where he is threatened with constraints on his religious freedom that do not reach the intensity of Article 3 of the ECHR, is in contradiction with the ECHR. Courts of other ECHR State Parties reached the same conclusion [compare e.g. Ullah in Special Adjudicator [2002] EWCA Civ 1856 (16.12.2002), [2002] EWCA Civ 1856, [2003] 1 WLR 770, [2003] INLR 74, Art. 63-64; or R in Special Adjudicator (Respondent) ex parte Ullah [2004] UKHL 26 (17.06.2004)] and doctrine (compare e.g. JORRO, P., SYMES, P.: Review of Asylum Law & Practice. Lexis Nexis, 2003, p. 403-404). Article 9 of the ECHR does not have extraterritorial effect, unlike, for example, Articles 3 and 8 of the Convention.
The Court concluded that the Applicant did not meet the conditions for granting asylum. In the case of the alleged threats that might be carried out as a result of the car accident and the threat of possible health risks resulting from staying in the area that was affected by the Chernobyl accident, the Court did not find any connection to reasons relevant to asylum. As for the alleged fear of persecution for his religious conversion, the Applicant did not prove that this threat could occur if he were to return to the Ukraine (in any form).
The Applicant also did not meet the conditions for granting subsidiary protection: (1) concerning a threat of serious harm because of his religious conversion, expulsion of the individual to a country where there is a threat of constraints on his religious freedom that do not reach the intensity of Article 3 of the ECHR, is not in contradiction with the ECHR since Article 9 of the ECHR does not have extraterritorial effect; (2) as for possible health risks, the Applicant did not consider the possibility of moving to a different part of the Ukraine; (3) the threats in relation to the car accident did not reach the degree of intensity required by Article 3 of the ECHR and the Applicant did not satisfy the burden of proof demanded by Article 3 of the ECHR. The Claimant’s personal or family relations in the Czech Republic could not prima facie represent a reason that would hinder him from leaving the country according to Article 8 of the ECHR.
Outcome:
The Supreme Administrative Court rejected the cassation complaint of the Applicant.
Observations/comments:
Although the Supreme Administrative Court criticised the fact that conditions for refusing the application as manifestly unfounded were not completely met (point 3), ultimately the Claimant’s cassation complaint failed as the Court examined whether the conditions for both forms of protection were met on their merits, and reached the conclusion that the Applicant did not meet them.
The Supreme Administrative Court dealt with the possible extraterritorial application of Article 9 of the ECHR as the Act on Asylum contains a fourth ground for granting subsidiary protection beyond the terms of the Qualification Directive – a discrepancy with regard to international obligations.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 16(2) |
Cited Cases:
| Cited Cases |
| Czech Republic - 5 Azs 24/2008-48 (Supreme Administrative Court) |
| UK - R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the Home Department [2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323, [2004] 3 WLR 23 |
Other sources:
JORRO, P., SYMES, P.: Review of Asylum Law & Practice. Lexis Nexis, 2003