Slovakia - Supreme Court of the Slovak Republic, 16 March 2011, V.M. v Ministry of Interior of the Slovak Republic, 10Sža 9/2011
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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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
In the opinion of the Supreme Court of the Slovak Republic, the decision of the defendant was arbitrary only with regard to the statement that “in view of the fact that there is no legal entitlement to asylum in the territory of the Slovak Republic on humanitarian grounds and in the course of the procedure no facts were found which would have led the Migration Office to such a conclusion, it will not grant asylum on humanitarian grounds under Section 9 of the Asylum Act“, which could not be reviewed due to lack of grounds.
Facts:
The applicant left his country of origin together with his mother because of the psychological and physical tyranny of the father of the family. He has been living in Slovakia since 2006, is fully integrated, speaks faultless Slovak, has not committed any crimes, attends secondary school and has enjoyed significant sporting success in boxing.
In 2010 he requested asylum on the basis of persecution due to membership of a particular social group (victim of domestic violence) and also requested asylum on humanitarian grounds.
The Migration Office of the Ministry of Interior of the Slovak Republic refused asylum and refused to provide subsidiary protection to the applicant. He filed an appeal against this decision at the Regional Court in Bratislava. The decision of the Migration Office was upheld by the Regional Court in Bratislava. The applicant therefore appealed to the Supreme Court of the Slovak Republic against the judgment of the Regional Court in Bratislava.
Decision & reasoning:
In the opinion of the Supreme Court of the Slovak Republic, the decision of the defendant was arbitrary only with regard to the statement that “in view of the fact that there is no legal entitlement to asylum in the territory of the Slovak Republic on humanitarian grounds and in the course of the procedure no facts were found which would have led the Migration Office to such a conclusion, it will not grant asylum on humanitarian grounds under Section 9 of the Asylum Act“, which could not be reviewed due to lack of grounds.
The Supreme Court of the Slovak Republic states that, according to settled case-law, it is clear that the actual decision to grant or to refuse asylum on humanitarian grounds under Section 9 of the Asylum Act is within the discretion of the defendant, but in this context the appellate court points to the opinion of the Supreme Court of the Slovak Republic expressed in Judgment No 1 SžoKS 124/2005 of 23 January 2007, according to which, if the applicant asserts grounds during the course of an administrative procedure, the defendant must, in the statement part the decision, set out an opinion on those grounds and thus duly set out the reasons for which it has refused asylum on humanitarian grounds.
It is beyond doubt that both the applicant himself and his legal representative, during the course of the administrative procedure, clearly pointed out the reasons for which they were applying for asylum on humanitarian grounds.
Outcome:
The Supreme Court of the Slovak Republic reversed the decision of the Regional Court in Bratislava, setting aside the decision of the Ministry of Interior – Migration Office, and referring the case back to the Migration Office.
Observations/comments:
Senát zložený z predsedníčky senátu JUDr. Jany Henčekovej, PhD. a z členov JUDr. Zuzany Ďurišovej a Ing., JUDr. Miroslava Gavalca, PhD.
Cited National Legislation:
| Cited National Legislation |
| Slovakia - Zákon 480/2002 Zb. o azyle a o zmene a doplnení niektorých zákonov (Act No 480/2002 on asylum and amending certain other acts) - § 9 |