Poland - Regional Administrative Court, 16 January 2008, V SA/Wa 2193/07
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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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
Headnote:
This case was an appeal against the decision of the Polish Refugee Board on refusal to accord refugee status on the grounds that the application was manifestly unfounded application, and on granting a permit for tolerated stay. The lack of grounds for an application does not mean that the case should not be examined on its merits.
When assessing a subsequent application, the authority may find that, in the framework of the new assertions of the interested party, the application is manifestly unfounded. The authority has the right to reach such a conclusion provided that the application is first examined in the context of its contents and in the context of the evidence cited by the Applicant.
The authority is also obliged to examine the case initiated by the subsequent application in light of the progress made, if any, in the case concerning the previously submitted (first) application for refugee status.
Facts:
In the decision of November 2005, the Applicant was denied refugee status and was granted a permit for tolerated stay in the Republic of Poland. The second-instance authority upheld the decision. The Regional Administrative Court in Warsaw dismissed the Applicant’s appeal against this decision.
In November 2006, the Applicant waived his tolerated stay and submitted a new application for refugee status. In the grounds of this application the Applicant stated that he had left his country of origin because he feared the Security Services, who had killed one of his brothers; his other brother had disappeared without trace, despite efforts to find him. In addition, in 2003, after all the fighters had been expelled from the village, the houses were burnt to the ground. The Applicant stated that in the years 2001-2003 he had taken part in the war.
The second application was substantively analysed based on the evidence submitted by the party (including printouts from the internet). The administrative proceedings ended with the issuance of a decision refusing refugee status on the grounds that the application was manifestly unfounded application and granting a permit for tolerated stay. The Applicant lodged an appeal with the Regional Administrative Court in Warsaw.
Decision & reasoning:
The determination of refugee status is a process during which it is necessary to establish the facts pertinent to the given case and then to apply to those facts the definitions from the 1951 Refugee Convention and the New York Protocol of 1967.
The authority is wrong to assert that the subsequent application for refugee status is unfounded in the sense that the case cannot be decided on the basis of the contents of the application. This assertion stands in clear contradiction to the authority’s actions, for the authority did in fact decide on the application by denying the Applicant protection.
When making its assessment, the authority may find that, in the framework of the new assertions of the interested party, the application is manifestly unfounded. The authority has the right to reach such a conclusion provided that the application is first examined in the context of its contents and in the context of the evidence cited by the Applicant. The authority also examines the case in light of the progress made, if any, in the case concerning the previously submitted (first) application for refugee status.
Where an applicant makes further representations or a subsequent application, the Asylum Procedures Directive allows for the possibility to examine the subsequent application not only as a new application but also in the framework of the examination of the previous application or of the examination of the decision under review or appeal. This also allows for the possibility to consider the actions of the authority as regards the possibility of setting aside the final decision – in this instance, of course – having taken into account the position of the party in this regard.
Administrative authorities should bear in mind the guidelines contained in this Directive, since European Union Member States are obliged to introduce the statutory, executive and administrative provisions necessary to implement the aforementioned Directive by 1 December 2007 at the latest.
The Court also points out that authorities should take into account the guidelines contained in the aforementioned Asylum Procedures Directive as regards the principles for examining subsequent applications for refugee status due to the direct effect of the Directive in the Republic of Poland.
Outcome:
The decision of the Polish Refugee Board was overturned.
Observations/comments:
The judgment concerns the responsibilities of an authority when assessing a subsequent application. It refers to the concept of a manifestly unfounded application, stressing the substantive character of such an assessment (and therefore refers to the distinction between a manifestly unfounded application and an inadmissible application).