Czech Republic - Supreme Administrative Court, 18 May 2011, H.P. v Ministry of Interior, 5 Azs 6/2011-49
| Country of Decision: | Czech Republic |
| Country of applicant: | Ukraine |
| Court name: | Supreme Administrative Court |
| Date of decision: | 18-05-2011 |
| Citation: | 5 Azs 6/2011-49 |
Keywords:
| 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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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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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:
The fact that one of the grounds for requesting asylum was to legalise residency in the Czech Republic was not sufficient in itself to allow the application to be deemed unfounded.
The Ministry of Interior must address all factual statements made, even if not formally named as grounds for the asylum application.
Facts:
The applicant, from the Ukraine, applied for international protection in the Czech Republic. This was her second application where she stated following: that she caused a car crash in the Ukraine in which her boyfriend died, as a result she came into conflict with her boyfriend’s brother and friends, who threatened and attacked her, she was beaten and tortured.
The applicant claimed international protection based on the right to family life, which she enjoyed with her Czech boyfriend, with whom she was planning a marriage.The application was dismissed as unfounded according to the provision of Art 16 of the Asylum Act. The Ministry of Interior (MOI) stated that the only reason for the application was an attempt to legalise residency.The MOI also stated that the applicant had not provided any circumstances that would indicate a risk of imminent persecution or serious harm in her country of origin.
The applicant appealed to the Regional Court. She argued that the MOI did not deal with the issue of private individuals as actors of persecution or serious harm. The Court dismissed her appeal and confirmed the decision of the administrative body.
The applicant brought a cassation complaint to the Supreme Administrative Court (SAC). In the complaint she reiterated her argument regarding private actors of persecution.
Decision & reasoning:
The grounds for granting international protection are based on the facts that emerge during the proceedings and it is irrelevant whether the applicant expressly designate these facts as the grounds for his or her claim. An applicant who is not familiar with asylum law does not know how to qualify his or her statements and how to describe them formally. The content of the applicant’s statement is essential.
If an applicant for international protection presents his or her factual statements relevant to the granting of international protection according to the provision of Art 12-14a of the Asylum Act, during the administrative procedure, in this instance the administrative body is obliged to properly deal with them, regardless of whether these statements have been formally designated as the grounds for which he or she requests international protection.
The fact that one of the grounds for requesting asylum was to legalize the applicants residence in the Czech Republic is not sufficient in itself to reject this application as apparently unfounded according to the provision of Art 16 of the Asylum Act, or to refuse international protection according to the provision of Art 12-14a of the Asylum Act. This does not preclude the fact that the applicant left their country of origin to settle in the Czech Republic precisely because he or she has a well-founded fear of persecution based on asylum grounds or that he or she would face a real risk of serious harm giving rise to an entitlement to subsidiary protection in case of return to their country of origin.
If a foreigner didn’t need any legal title to stay in the Czech Republic, he or she wouldn’t need to apply for the international protection. If such a point of view were adopted, it could be possible to dismiss any application for protection due to the fact it was submitted in an effort to legalise stay in the country, even if such an application was reasonable.
Outcome:
The decision of the Regional Court was cancelled.
Observations/comments:
Judgment of the Supreme Administrative Court, No. 5 Azs 6/2011–49 available at www.nssoud.cz
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) |
Cited Cases:
| Cited Cases |
| Czech Republic - 5 Azs 6/2010-107 (Supreme Administrative Court) |