Hungary - Metropolitan Court of Public Administration and Labour, 10 March 2016, 5.K.30.385/2016
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
In case of conflict between a domestic and international norm the Court is obliged to adhere to the latter and set aside the former. Given the well-established right to an effective remedy in international and European instruments, an element of which relates to the remedy’s timeliness, the court is obliged to remake the OIN’s subsidiary protection decision and provide the applicant with refugee status. This conclusion applies notwithstanding that domestic legislation prohibits the Court from reforming an OIN decision. To abide by this legislation would result in a never-ending appeal procedure thereby rendering the remedy ineffective.
Facts:
The applicant was persecuted and repeatedly tortured by the Al-Shabab for working in a cinema broadcasting movies, which is against Islam, but he was only granted subsidiary protection. The court went beyond its powers and changed the decision to grant timely and effective remedy for a traumatised asylum seeker. The Office of Immigration and Nationality (OIN) rejected the application but granted subsidiary protection. The reasoning was that the applicant could only evoke his lower social status, coming from a minority tribe, which in itself does not qualify as persecution and there were no grounds from the Geneva Convention. Subsidiary protection was granted as the general security situation in Somalia is insufficient. The fact that Al-Shabab did not allow the applicant to work in a cinema cannot be considered persecution as this was a conflict within the same religion (Islam) therefore it is not persecution on religious grounds.
Decision & reasoning:
Following the 15th September 2015 courts do not have reformatory power to change administrative decisions but the court in this case overruled the OIN’s decision and recognised the applicant as a refugee based on the following arguments:
The judge firstly set forth that the Hungarian Fundamental Law (Constitution) acknowledges the supremacy of international law over domestic laws and in the case of conflict between the two the Constitutional Court is entitled and obliged to quash the problematic domestic provision. As Hungary ratified the ECHR it is part of domestic law as well. The court emphasised that timeliness is also an attribute of an effective remedy and given the circumstances that the legislator abolished the courts’ power to change administrative decisions and address the violation of the rights of the applicant in a timely and direct manner it needs to disregard the latest legal modifications.
The court argued that as the ECHR and the Charter foresees that a remedy may only be effective if it is effectuated in a reasonable time, this is a requirement that Hungarian legislation must observe. Given the fact that asylum seekers are in a specifically vulnerable position within the host society they must have their rights protected in an effective manner as the ECtHR ruled in MSS vs. Belgium and Greece. The court also noted that Article 31 of the Asylum Procedures Directive (APD) foresees that the refugee status determination procedure should be completed within the shortest reasonable time.
Despite the fact that Hungarian legislation does not respect the above requirement of EU law the court needed to remedy the situation, otherwise asylum seekers risk being stuck in an endless court review procedure because the asylum authority continues to issue incorrect decisions and the court can only quash them but cannot award refugee status. Such a limbo may lead to endless insecurity, which is not permitted given the extreme vulnerability of traumatised asylum seekers.
The court ruled that remedy can only be regarded effective if it is able to rectify the situation and if the courts are not vested with reformatory power this may lead to the ineffectiveness of the remedy.
Outcome:
Appeal granted, refugee status granted.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
Other sources:
Report of the Consular Services of the Hungarian Ministry of Foreign Affairs and Trade