Czech Republic - Regional Court in Hradci Králové, 13 July 2011, J.M.A. v Ministry of Interior, 30 A 28/2011-33
| Country of Decision: | Czech Republic |
| Country of applicant: | Cameroon |
| Court name: | Regional Court Hradec Králové |
| Date of decision: | 13-07-2011 |
| Citation: | 30A 28/2011-33 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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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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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. |
Headnote:
The state cannot remove an applicant for asylum if the conditions of Art 31 of 1951 Refugee Convention are met.
Facts:
The applicant from the Cameroon, applied for asylum in the Czech Republic immediately after her entry. However, she received a decision ordering administrative deportaion as she entered without a visa or valid documents. She appealed to headquarters of Aliens Police in the Czech Rep, but the appeal was dismissed. Therefore, she filed an action before Regional Court in Hradec Králové, arguing that the police ignored the rule enshrined in Art 31 of the 1951 Refugee Convention.
Decision & reasoning:
The Court stated that the application of Article 31 of the 1951 Refugee Convention must be properly investigated. It must always be considered whether the following conditions of this article are met: the asylum seeker has come directly from the state territory where their life or freedom was threatened, they presented themselves to the authorities without delay and show a good cause for illegal entry. If one of the conditions is not met then the definition of Article 31 is not fulfilled.
The police in this case did not properly address these conditions. Although the police claimed that the asylum seeker could not have come from the state where her life was threatened when she apparently travelled by car, this was not verified. The police claimed that this was absolutely unlikely and therefore an untrue statement
The Court held that the Police had a duty to properly consider relevant facts and documents concerning unlawful entry and also to consider the requirement of showing ‘good reason’ for unlawful entry. The police did not address the third condition at all.
Outcome:
The appeal was successful and the decision of the police was cancelled.
Subsequent proceedings:
The Police submitted an appeal to the Supreme Administrative Court and a ruling on the case is still pending.
Observations/comments:
If an asylum seeker is given an expulsion order this cannot be executed while the protection procedure is under examination.
Obiter Comments: The Court criticised the decision of the police for lack of reasoning and findings of fact. The Court also noted that the provision of Art 31 of the 1951 Refugee Convention is of higher standing then the Czech Aliens Act Art 119(a) and must be applied preferentially (it has precedence over the Aliens Act).