Slovakia - N.P. v Ministry of Interior of the Slovak Republic, 1 February 2012, 10Sža/61/2011
Keywords:
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Legal assistance / Legal representation / Legal aid
Description
Legal assistance: "practical help in bringing about desired outcomes within a legal framework. Assistance can take many forms, ranging from the preparation of paperwork, through to the conduct of negotiation and representation in courts and tribunals.” Legal aid: state funded assistance, for those on low incomes, to cover legal fees." |
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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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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. |
Headnote:
In the opinion of the Court, generally accepted principles of administrative procedure such as the right of a participant to be heard, the right to comment on the basis for a decision, the right to present evidence in support of one’s claims in a procedure and the right to be informed of the grounds for an administrative act (Resolution 77(31) of the Committee of Minister of the Council of Europe of 28 September 1977) must not be disregarded in the case in question.
Facts:
The Regional Court in Bratislava upheld the decision of the Migration Office, which rejected the Applicant’s request for asylum as manifestly unfounded.
The Respondent justified its decision to reject the application as manifestly unfounded on the grounds that it had taken note of the Applicant’s previous asylum requests, and it stated that the only reason for the Applicant’s departure from her country of origin was the unfavourable economic situation; she was therefore an economic migrant who was seeking to exploit the asylum system to legalise her stay in Slovakia and thus avoid deportation. With regard to the Applicant’s claim that she was afraid she would not see her children if she returned to Moldova, as they live in Slovakia, the Migration Office argued that, in view of the facts established in relation to her two children (who have been entrusted to the care and custody of others), it had concluded that this ground was simply strategic.
The Applicant claimed in her appeal to the Regional Court in Bratislava that an error had occurred in the proceedings which affected the legality of the decision – that she had stated before the start of the admission interview on 23 May 2011 that she wished to make a statement in the presence of her lawyer, that she had chosen a legal representative for the proceedings, that the employees of the Migration Officewho conducted the interview had told her that she could make a statement even without her lawyer being present and that she had been afraid to refuse to make a statement, that she had not received a summons to the (admission) interview on 23 March 2011 and that she was thus unable to prepare for the interview. The Applicant also claimed that the Migration Office failed to establish the facts fully, that it had not addressed her case and the grounds she had presented, that she came from Transnistria, which declared independence from Moldova in 1990, and that the contested decision had been issued only two days after the admission interview took place. The Applicant also claimed in the appeal that the Migration Office had failed to consider the possibility of granting her asylum on humanitarian grounds.
In the opinion of the Regional Court in Bratislava, the claims were unfounded, and thus incapable of causing the contested decision to be set aside. The Court therefore upheld the decision of the Migration Office.
The Applicant filed an appeal against the judgment of the Regional Court in Bratislava with the Supreme Court of the Slovak Republic, in which she claimed that the decision of the court of first instance was based on an incorrect legal assessment of the case, that the court of first instance had arrived at an incorrect finding of fact on the basis of the evidence submitted, that the procedure of the Migration Office as the administrative authority contained a defect that had an impact on the legality of the decision, that the administrative authority had failed to establish the facts fully and, finally, that the administrative authority had failed to consider the possibility of granting the Applicant asylum on humanitarian grounds under Section 9 of the Asylum Act.
Decision & reasoning:
Inasmuch as the Applicant claimed in the appeal that the Migration Office had, through its actions, committed a fundamental breach of the procedural obligations imposed on it by Article 47(2) of the Constitution of the Slovak Republic, the Administrative Procedure Code and the Asylum Act with regard to the fact that she had clearly expressed a wish to have a legal representative in the asylum proceedings by stating that she had “chosen a legal representative” for the proceedings, this claim was well-founded, and on the basis of the foregoing the Regional Court ought to have set aside the Migration Office’s contested decision and referred the case back to it. As the Regional Court upheld the Migration Office’s decision, the appeal court concluded that Regional Court’s decision had to be amended.
The Applicant also clearly demonstrated (as was apparent from the contents of the administrative file) that she had known nothing about the interview. It is quite clear that the administrative authority’s file included a summons dated 19 May 2011 for the Applicant to attend an oral interview, and on the back page there is a confirmation of the delivery of the document, but the summons lodged in the file has not been signed by the Applicant with a record of the date of receipt of the summons.
In the opinion of the appeal court, the Applicant knew nothing about the interview, and was thus unable to make adequate advance preparations for it, seek advice from her legal representative and set out all of the facts that were important for the assessment of her asylum application. Since she did not find out until the moment she was led in for the interview, she was denied the possibility of preparing adequately and of informing her chosen legal representative about the interview.
The procedure and decision-making of the Court in the appeal against the Migration Office’s decision not to grant asylum constitutes a procedure for reviewing the legality of the decision pursuant to Part V of the Civil Procedure Code and not a continuation of the administrative procedure. It is therefore not the role of the court of first instance or the appeal court to add to the argumentation on the merits of the decision of the Migration Office or the legal argumentation, and neither is it their role to take evidence in relation to the facts, the finding of which is the role of the administrative procedure. In view of the foregoing, it would not be right to set aside the decision of the Regional Court and refer the case back to that Court. The appeal court concluded instead that the decision of the court of first instance should be amended so that the Migration Office’s decision be set aside, as there was a defect in the procedure of the administrative authority which might have affected the legality of the contested decision.
The Court noted that a detailed examination of an Applicant in asylum proceedings is a primary precondition for establishing and clarifying the grounds on which the Applicant is requesting asylum. It has obvious significance in determining the scope and method of any further evidence that is to be taken, the evaluation of which must be adequately justified in the reasoning of the decision. Only by following this procedure can a proper finding of fact be achieved.
The taking of evidence by examining the Applicant to establish the grounds of an asylum application forms a necessary part of the finding of facts in the administrative procedure, and is the role not of the Court but of the Migration Office. It should be stated that the obligation to determine the facts under Section 32 of the Administrative Procedure Code rests with the Migration Office within the scope of the grounds set out by the Applicant during the proceedings.
In the opinion of the Court, generally accepted principles of administrative procedure such as the right of a participant to be heard, the right to comment on the basis for a decision, the right to present evidence in support of one’s claims in a procedure and the right to be informed of the grounds for an administrative act (Resolution 77(31) of the Committee of Ministers of the Council of Europe of 28 September 1977) must not be disregarded in the case in question.
Outcome:
The Supreme Court amended the judgment of the Regional Court in Bratislava, setting aside the decision of the Migration Office and referred the case back to the Migration Office.
Subsequent proceedings:
The Migration Office is currently conducting subsequent proceedings in the case of the Applicant.
Observations/comments:
President of the Bench: JUDr. Jana Henčeková, PhD., members of the bench: JUDr. Zuzana Ďurišová and JUDr. Elena Berthotyová, PhD.
Cited National Legislation:
Other sources:
Resolution 77(31) of the Committee of Ministers of the Council of Europe of 28 September 1977