Czech Republic - Supreme Administrative Court, 29 April 2009, T.K. v Ministry of Interior, 2 Azs 93/2008
| Country of Decision: | Czech Republic |
| Country of applicant: | Belarus |
| Court name: | Supreme Administrative Court |
| Date of decision: | 29-04-2009 |
| Citation: | 2 Azs 93/2008 |
Keywords:
| Keywords |
|
Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
Headnote:
The case concerned the inadmissibility of an application for international protection considering the Dublin II criteria and the validity of a visa.
Facts:
The applicant had a Czech short-term visa, which was issued in November 2006 for a single entrance and 12 days of allowed residence. The time period (validity of this visa) was given from 5.1.2007 until 19.1.2007. She also had a visa to Poland, of same type, issued in October 2006, with a allowed stay of 5 days. However, the time period (validity of visa) was much longer, from October 25, 2006 until April 2007. Stamps in the applicant's passport showed that she traveled in December to Poland and she returned back to Belarus the following day. Consequently, in January 2007 she transited through Poland and travelled to the Czech Republic, where she lodged an application for international protection.
The Ministry of Interior (MOI) stopped the proceedings as it found the application inadmissible; a decision was made that according to the Dublin II Regulation Art 9 .3(b) Poland was the state responsible for examining the applicant's asylum application. The applicant filed an action against the decision of the Ministry of Interior in the Regional Court, which was dismissed. The applicant appealed to the Supreme Administrative Court.
Decision & reasoning:
The Supreme Administrative Court dealt with the question of whether the applicant was, at the moment of lodging the application, the holder of a valid visa for the Czech Republic, and whether in addition she had a valid visa for Poland.
The Supreme Administrative Court had to determine the moment the visa lost its validity, i.e. whether the validity of a visa for a single entrance terminates by the exhaustion of this right or by the expiry of the time limit in which the right of a single entrance upon visa can be exhausted.
The Court held that the validity of a short-term visa terminates at the moment of exhaustion of the allowed number of entrances, even if it occurs before the deadline for which the visa was issued.
The visa issued to the applicant for her stay in Poland for the time period from October 2006 until April 2007 for a single entrance of 5 days at most was exhausted when the applicant traveled out of Poland. This means that at the moment of lodging the application, the applicant was a holder of only one valid visa and according to the Art 9.2 of the Dublin II Regulation, the Czech Republic is responsible for examining the asylum application.
Outcome:
The SAC cancelled the decision of the Regional Court.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz
Relevant International and European Legislation:
Other sources:
Schengen Agreement, Art 11 (15)
Common consular instructions on visas for the diplomatic missions and consular posts, Art 16