Czech Republic – Supreme Administrative Court, 23 June 2010, A.B. v. Ministry of Interior, 4 Azs 16/2010-47
| Country of Decision: | Czech Republic |
| Country of applicant: | Algeria |
| Court name: | Supreme Administrative Court |
| Date of decision: | 23-06-2010 |
| Citation: | 4 Azs 16/2010-47 |
Keywords:
| Keywords |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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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examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned.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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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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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.“ |
Headnote:
Even if the conditions for considering a subsequent application as inadmissible are fulfilled, the Ministry of Interior is still obliged to consider whether the applicant is in danger of serious harm upon return to his or her country of origin.
Facts:
The applicant submitted his third application for international protection. The applicant claimed that his reasons for filing a third application were the same as in the previous cases, that he feared a terrorist threat. Because he did not present any new reasons this application was found inadmissible according to Art 10(a) of the Asylum Act and the procedure was terminated under Art 25(i) of the Asylum Act.
The applicant appealed to the Regional Court against the decision of the Ministry of Interior (MOI), and claimed that the MOI was obliged to deal with the question of non refoulement. The Regional Court dismissed the appeal and the applicant filed an appeal in the Supreme Administrative Court
Decision & reasoning:
According to the Supreme Administrative Court fulfilling the conditions in Art 10(a) of the Asylum Act (considering a subsequent application inadmissible) does not set aside the obligation to consider whether the applicant is not in danger of serious harm if returned to his country of origin.
The MOI is obliged to consider this in its reasoning in relation of the possibility of granting subsidiary protection. The Supreme Administrative Court held it was insufficient to find that the application for international protection was inadmissible (and the proceedings terminated), reasons had to be given as to why other forms of international protection, in this case subsidiary protection, have not been granted.
The Ministry of Interior is obliged to give reasons for its decision regarding both forms of international protection - even if the application is found inadmissible. While it was not necessary for the Regional Court to provide reasons for not granting asylum, as the applicant did not present any new reasons and arguments that had not been examined in previous proceedings, MOI is still obliged to consider (from country of origin information) whether the conditions for granting subsidiary protection are fulfilled, in order to determine that there is really no danger of serious harm in case of return to one’s country of origin.
Outcome:
The appeal was successful and the decision of the Regional Court was cancelled.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz
In its decision the SAC relied on previous case-law (1 Azs 107/2008-78) and was influenced also by the decision of the CJEU in Elgafaji v Staatssecretaris van Justitie C-465/07.
Due to the inconsistency in decisions of different chambers of the Supreme Administrative Court dealing with the question of considering granting subsidiary protection when the procedure is terminated because the application is found inadmissible, this legal question has been presented to the extended bench of the Supreme Administrative Court. The extended bench of the Supreme Administrative Court had not yet decided the matter at the time of writing.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 25(i) |
| Czech Republic - Asylum Act (325/1999 Coll.) - Art 10(a) |
Cited Cases:
| Cited Cases |
| Czech Republic - 1 Azs 13/2006-39 (Supreme Administrative Court) |
| Czech Republic - 1 Azs 107/2008 (Supreme Administrative Court) |
| Czech Republic - 2 Azs 10/2009-53 (Supreme Administrative Court) |
| Czech Republic - 7 Afs 212/2006-74 (Supreme Administrative Court) |