Czech Republic - Supreme Administrative Court, 30 December 2008, D.B. v Ministry of Interior, 8 Azs 37/2008-80
| Country of Decision: | Czech Republic |
| Country of applicant: | Uzbekistan |
| Court name: | The Supreme Administrative Court |
| Date of decision: | 30-12-2008 |
| Citation: | n.8 Azs 37/2008-80 |
Keywords:
| Keywords |
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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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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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
Headnote:
The case concerned an accelerated procedure decision. The applicant, an Uzbek national, claimed asylum only after he feared removal from the Czech Republic, his application was therefore rejected as unfounded by the Ministry of the Interior. However, the Supreme Administrative Court (SAC) disagreed and set a three condition test to be applied in order to determine when an application is unfounded. The SAC also pointed out that the grounds for applying for international protection can be based on events which had taken place since the applicant left the country of origin.
Facts:
Decision & reasoning:
When examining whether an asylum application is manifestly unfounded due to an alleged intention to avoid or delay a removal decision, it is necessary to pass the three conditions test that the court outlined in its previous decisions. All three conditions need to be fulfilled:
1) the applicant faces an imminent threat of expulsion or extradition
2) the applicant was able to lodge his asylum application earlier
3) it is obvious that the application was lodged “solely“ to avoid expulsion and/or extradition.
In this case, condition 1) was met, as the existence of a departure order was sufficient to prove an existing threat of removal. Condition 2) however was not met, as it had not been properly examined whether the applicant could have submitted the application earlier. Condition 3) was not met, as it was not proven whether the applicant submitted his application “solely” for purposes of avoiding expulsion. The applicant’s statements should have been examined in more detail, along with the situation in his country of origin for potential grounds to claim subsidiary protection. In his case, a status of refugee ‘sur place’ should have been examined in accordance with Art 5 of the Qualification Directive. The Court also noted that in the upcoming procedure it would also be important to examine, in accordance with Art 10(1)(e), 10(2) of the Qualification Directive, whether the applicant is considered by the authorities as having certain political opinions.
Outcome:
The appeal was successful and the regional court decision annulled.
Observations/comments:
The so-called 'departure order' is similar to a visa but serves only for the purposes of leaving the country. It's validity varies from 7 to 60 days. If the person does not leave Czech territory within the given time limit a forced deportation can follow.
Case available on the website of the Supreme Administrative Court - www.nssoud.cz