CJEU - C 404/17, A v Migrationsverket, 25 July 2018
| Country of Domestic Proceedings: | Sweden |
| Country of applicant: | Serbia |
| Court name: | Court of Justice of the European Union, First Chamber |
| Date of decision: | 25-07-2018 |
| Citation: | C 404/17 |
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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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
Headnote:
A Member State cannot rely on the rebuttable presumption under Articles 36 and 37 of the 2013 Asylum Procedures Directive (APD) in respect of the safe country of origin concept and subsequently find the application to be manifestly unfounded in accordance with Article 31(8)(b) without having fully implemented and complied with the procedures under the APD relating to the designation of countries as safe countries of origin.
Moreover, a Member State may not consider an application for asylum as manifestly unfounded under the APD due to the insufficiency of the applicant’s representations.
Facts:
The main proceedings concern a Serbian national who applied for asylum in Sweden on 12 March 2017. In 2003, the applicant reported a militia group to the police resulting in legal proceedings against several members of the group and, for that reason, was the victim of violent threats. He was put in a witness protection programme and lived in several places in Serbia (including in prison) until he decided to renounce the status of witness protection and to hide in his original place of residence. Since then, he received several threats by telephone and left the country fearing persecution by the militia. The Swedish Migration Agency rejected the applicant’s request for asylum and ordered his return, including a two-year entry ban. The asylum application was considered manifestly unfounded on grounds that Serbian authorities could, in principle, provide the applicant with effective protection. The applicant appealed against the decision to the Administrative Court for Immigration Matters, Malmö, arguing that the protection he was previously granted was ineffective (due to threats by Serbian authorities and the widespread corruption in that country) and inhumane (because he was forced to live in isolation for years).
The Administrative Court of Malmo subsequently referred the following question to the CJEU for a preliminary ruling, regarding the reliability of country of origin information about state protection for ruling out an asylum application as manifestly unfounded:
- Is an application in which the applicant’s information is deemed to be reliable and so is taken as the basis for the assessment, but insufficient to form the basis of a need for international protection on the ground that the country-of-origin information suggests that there is acceptable protection, to be regarded as clearly unfounded under Article 31(8) of the recast Asylum Procedure Directive?
Decision & reasoning:
As a preliminary remark, the Court notes that there is no legislation or regulatory provision in Swedish law in respect of countries of origin within the meaning of the Asylum Procedures Directive 2013 (APD). Notwithstanding the absence of legislation in this respect, the Migration Agency rejected the applicant’s asylum application as manifestly unfounded under national legislation transposing the APD on grounds that Serbia provided effective protection for him and that he had not established that Serbia does not offer adequate protection for him from the threats he faces in the country. According to the Court, the decision taken by the Migration Agency was based on reasoning similar to Articles 36 and 37 of the APD relating to the safe country of origin concept which, where applied by a Member State who has provided for the concept in its domestic legislation, to subsequently reject the application as manifestly unfounded in accordance with Article 31(8)(b) and 32(2) of the APD. If a State rejects the application on this basis an applicant’s appeal against such a rejection may not have suspensive effect (as per Article 46(5) and (6) of the APD).
The Court, therefore, notes that the above decision of a Member State relies on the State designating safe countries of origin in accordance with the procedure laid down in Articles 36 and Annex I to the APD, namely the adoption of a list of third countries, the enactment of additional implementation rules and notification to the Commission of the list or its periodic review. Sweden had, conversely, not fulfilled any of these requirements. According to the Court, then, a Member State cannot rely on the rebuttable presumption under the APD in respect of the safe country of origin concept without having fully implemented those rules.
In addition, uncertainties from the referring court as to whether insufficient statements from the applicant could lead to the application being determined as manifestly unfounded, the Court held that unlike the 2005 APD the 2013 APD no longer refers to insufficient representations under Article 31(8)(e). Thus a Member State may not consider an application for asylum as manifestly unfounded due to the insufficiency of the applicant’s representations.
Outcome:
Article 31(8)(b) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 32(2) of that directive, must be interpreted as not allowing an application for international protection to be regarded as manifestly unfounded in a situation, such as that at issue in the main proceedings, in which, first, it is apparent from the information on the applicant’s country of origin that acceptable protection can be ensured for him in that country and, secondly, the applicant has provided insufficient information to justify the grant of international protection, where the Member State in which the application was lodged has not adopted rules implementing the concept of safe country of origin.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Sweden - Paragraph 19 of Chapter 8 of the utlänningslag (Law on foreign nationals) (SFS 2005 |
| No 716 |
Other sources:
CJEU - Judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 57