Italy – Council of State, 7 May 2015, No- RG 2655/2015
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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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The procedural guarantee in Art. 4 of the Dublin Regulation (EU) No 604/2013 is mandatory. The guarantee concerns the asylum seekers right to information when they present an application for international protection.
This safeguard is not respected solely because the applicant has undergone a personal interview, he needs to be given the “Common Leaflet”. This aims at guaranteeing that the information has been delivered in a proper way and in a clear and objective manner.
Facts:
The appellant arrived in Italy via the Austrian border and applied for International protection on account of persecution in his country of origin.
After the comparison of fingerprints with “Eurodac” it was apparent that the appellant had already applied for international protection in Germany.
The Italian administration ordered the applicant’s transfer to Germany on account of its responsibility, as established by the Regulation. Germany recognised its jurisdiction.
The appellant asked the Regional Administrative Tribunal (TAR) of Rome to declare that order invalid, but the TAR rejected the request.
The appellant appealed against the judgment highlighting that the Italian administrative had not correctly applied the Dublin Regulation (EU) No 604/2013. In particular because:
- The information referred to in Article 4(1) was not provided in writing through a “Common Leaflet”.
- The personal interview referred in Art. 5 of the Dublin Regulation does not by itself fulfil the obligation to provide information.
The appellant did not receive any information regarding the right to apply for suspensive effect of the transfer decision pending the outcome of the appeal.
Decision & reasoning:
When the issue involves procedural guarantees for the effective access to international protection the judge must not use a free interpretation.
It is clear that Art. 4(2) of the Dublin Regulation (EU) No 604/2013 states that when an asylum applicant presents an application for international protection, the individual’s right to information is mandatory. The applicant must receive the information provided within Art. 4(1). This information shall be provided in writing in a language that the applicant understands. For this reason the Member States shall use the “Common Leaflet”.
This right is not respected due to the mere fact that a personal interview (Art. 5 of the Regulation) has been conducted with the applicant in the presence of an interpreter. In fact this is one of many guarantees regarding the right to information of Art. 4. The applicant’s opportunity to ask more information is not the same as the Member State’s obligation to give him information in writing and in a systematic and objective way.
The applicant must receive the “Common Leaflet”. Its purpose is to guarantee that the information has been given in the proper way and in a clear and objective manner. It is not sufficient that the applicant can ask the competent person the information he thinks he may need. With the “Common Leaflet” the applicant will know exactly what to ask in order to protect his rights.
The information regarding the possibility to challenge the Administration’s acts is partially satisfied in the decision. In fact the measure contains guidance about the procedures and time limits for the procedural guarantees. Furthermore, the decision to transfer to Germany has been indicated by the Macerata Police with the note of 10.25.2014.
However, even with regard to the procedural guarantees, the European legislation provides different and additional procedural safeguards, which are not at all respected in this proceeding.
In fact Art. 26 of the Dublin Regulation states that Member States shall inform about the right to apply for suspensive effect, where applicable, and on the time limits applicable for seeking such remedies.
Moreover Art. 26 also states that the information regarding the procedure must be given to a legal advisor. If the person concerned is not assisted or represented by a legal advisor, Member States shall ensure that information on persons or entities that may provide legal assistance to the person concerned, is communicated to said person.
Art.27 of the Dublin Regulation specifies the procedures for access to legal assistance. It also states how to apply for a suspension of the transfer pending the outcome of the appeal.
Based on these reasons, the appeal must be granted and thus the appeal at first instance must also be granted in terms of the reasons given. The TAR must re-consider the decision which gave rise to the provision challenged here. In fact, from a procedural point of view the measure is unlawful.
Outcome:
Appeal granted.
Subsequent proceedings:
Council of State, n. 4199, 08/09/2015 the applicant is entitled to the right information (namely a leaflet) before being transferred to the competent State to assess the request for international protection. Therefore any transfer measure that is not preceded by the receipt of the leaflet is unlawful.
Observations/comments:
This case summary was written by Sara Lauria, a LPC student at BPP University.
This case summary was proof read by Lorenza Picciano a student at BPP University.