Hungary - Metropolitan Administrative and Labour Court, 14 December 2016, 17.K.33.921/2016/7-II
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Metropolitan Administrative and Labour Court |
| Date of decision: | 14-12-2016 |
Keywords:
| 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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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. |
Headnote:
The Court quashed the decision of the Office of Immigration and Nationality (OIN) based on the fact that it did not meet its duty to actively provide the Applicant the possibility to resolve contradictions in his statements, as required by Article 16 of the Recast Procedures Directive (RPD).
Facts:
The Applicant, a young man, applied for asylum on 2 December 2015, for fear of forced recruitment by the Islamic State. The OIN ruled his application inadmissible based on his entry from Serbia, a safe third country under Hungarian law. The Court quashed the decision and ordered the OIN to conduct a new procedure.
In the new procedure, the Applicant stated that there is a situation of war in Afghanistan. Many students have been taken from his school by the Taliban and the Islamic State, and there have been numerous suicide attacks in the neighbourhood because of the close proximity of the Parliament. The OIN again ruled the application inadmissible based on his entry from Serbia, but the Court quashed the decision since it failed to take into account its previous judgement.
In its third decision, the OIN rejected the application, pointing out several contradictions in the Applicant’s story.
Decision & reasoning:
The OIN rejected the Applicant’s application for asylum based on the lack of credibility. The OIN pointed out several contradictions in his story, for example that it is not likely he only finished 9th grade at the age of 21, before leaving his country of origin. The OIN noted that the general security situation in Kabul has been improving.
The Court stated the following:
‘According to Article 16 of Directive 2013/32/EU of the European Parliament and Council on common procedures for granting and withdrawing international protection (recast): ‘When conducting a personal interview on the substance of an application for international protection, the determining authority shall ensure that the applicant is given an adequate opportunity to present elements needed to substantiate the application in accordance with Article 4 of Directive 2011/95/EU as completely as possible. This shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in the applicant’s statements.’
The second sentence of Article 16 (the one relating to the opportunity to give an explanation regarding elements which may be missing, or inconsistencies in the applicant’s statements) has not been implemented in national law. According to Article 51 (1) the deadline for implementation was 20 June 2015, however, the above-mentioned provision cannot be found in the Asylum Act or the Decree on the Implementation of the Asylum Act. Based on the jurisdiction of the Court of Justice of the European Union (see: the judgement in the case of Van Duyn, 4 December 1974), Directives may have a direct effect, if their application is free of other conditions, if they are clearly defined and if they have not been implemented within the prescribed period of time. The second phrase of Article 16 clearly meets these criteria and therefore is directly applicable, meaning that the representative of the Applicant can rely on this provision when complaining that the OIN did not communicate its concerns regarding the credibility of the Applicant with him and did not provide an opportunity where he could clear all contradictions. The duty to provide an opportunity to address contradictions requires not a passive role from the asylum authority, but a proactive attitude where all questions relevant to establish credibility are communicated with applicants and sufficient questions are asked aiming to resolve these contradictions.’
Based on the above-listed legal criteria, decisions rejecting an application because of reasons relating to the credibility of the applicant can only be issued when the asylum authority had attempted to clear these contradictions in an active, proactive and supporting manner.
Outcome:
Appeal granted, decision quashed, new procedure ordered.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Hungary - Act CXL of 2004 on the general rules of administrative proceedings and services Article 50 |
| Hungary - Law LXXX of 2007 on Asylum Article 59 |
Cited Cases:
| Cited Cases |
| CJEU - C-41/74 Van Duyn v Home Office |