Slovenia - Constitutional Court of the Republic of Slovenia, 15 October 2015, judgment U-I-U-I-189/14, Up-663/14
| Country of Decision: | Slovenia |
| Country of applicant: | Afghanistan |
| Court name: | Constitutional Court of the Republic of Slovenia |
| Date of decision: | 15-10-2015 |
| Citation: | U-I-U-I-189/14, Up-663/14 |
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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Circumstances ceased to exist
Description
A significant and non-temporary change in circumstances as provided for in Article 11(e) or (f) of the Qualification Directive such that a refugee's fear of persecution can no longer be regarded as well-founded or as provided for in Article 16 such that the person eligible for subsidiary protection no longer faces a real risk of serious harm, and which may lead to cessation of refugee status or cessation of eligibility for subsidiary protection. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union 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. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
Termination of an applicant’s international protection status (ie where there is a change or termination of protection grounds) must be examined against the principle of non-refoulement, which ensures the right to a fair and efficient procedure in which the Asylum authority assesses if non-refoulement would be violated where protection ceases.
It results from the principle of non-refoulement that the applicant in proceedings on termination of subsidiary protection must have the possibility to state all the reasons for which subsidiary protection should not cease.
In the process of renewal of subsidiary protection all the guarantees provided by Article 18 of the Constitution (Prohibition of Torture) should be respected.
Legislation which limited the assessment of the competent authority in the subsidiary protection renewal procedure only to the grounds based on which an individual has been granted subsidiary protection, is inconsistent with the right set out in Article 18 of the Constitution.
Facts:
The Asylum authority refused to renew subsidiary protection status to an Afghan applicant because, according to the authority, the reasons for giving him this status has since ceased to exist. Article 106 of IPA states that when examining the request for prolongation of subsidiary protection, the only relevant reasons to be examined are those based on which the subsidiary protection was granted. The Asylum authority refused to examine new reasons that the applicant submitted in support for his request to have subsidiary protection prolonged. The case reached the Supreme Court which confirmed the Asylum authority’s decision.
The reasoning in support of the Asylum authority’s decision can be summarised as follows:
- if any kind of reasons could be examined in the procedure for renewing subsidiary protection, this would be contrary to the very essence of the renewal procedure;
- such procedure would be contrary to the principle of procedural economy;
- if there are new circumstances the applicant should start a new procedure for international protection;
- such procedure does not violate the right to an effective remedy because the applicant should be able to bring an action against a decision granting subsidiary protection in which he could oppose the reasons based on which subsidiary protection was granted;
- a final rejection of the request for an extension of subsidiary protection is not an enforceable title for the return of the applicant to his country of origin. This is decided in separate proceedings in accordance with the Aliens Act, where the principle of refoulement is examined;
- the relevant provisions in the Qualification Directive and in IPA are substantially identical;
- case Aydin Salahadin Abdulla and others is not applicable by analogy because this case is about termination of refugee status and not subsidiary protection.
The applicant appealed to the Constitutional Court claiming that Article 106(1) does not guarantee the respect of the principle of non-refoulement and is therefore unconstitutional and is not in compliance with Article 3 of ECHR.
Decision & reasoning:
Article 106(1) implements EU law, therefore the Constitutional Court has to assess its compliance with the Constitution by taking into account primary and secondary EU legislation and case law of the European Court of Justice.
The Constitutional Court does not agree that the principle of non-refoulement should be relevant only in a removal procedure, as provided by the Aliens Act. With the decision rejecting the application for international protection or an application for extension of subsidiary protection, an individual loses the right of residence and the right to remain in the Republic of Slovenia. Therefore, a decision can result in expulsion or extradition of an individual to his/her country of origin and may constitute a threat to the right under Article 18 of the Constitution (prohibition of torture). Therefore Article 18 of the Constitution should remain relevant also in the procedure for prolongation of subsidiary protection.
Termination of an applicant’s international protection status (ie where there is a change or termination of protection grounds) must be examined against the principle of non-refoulement, which ensures the right to a fair and efficient procedure in which the Asylum authority assesses if non-refoulement would be violated where protection ceases.
For the termination of subsidiary protection status (decision to refuse to renew the subsidiary protection) it is not enough to conclude that the circumstances based on which the protection was granted ceased to exist. The refusal to renew subsidiary protection status is possible only if there are no circumstances that would justify the need for protection. It follows from the principle of non-refoulement that the individual has to have the possibility to state all the reasons for which a subsidiary protection should not cease.
The purpose of the renewal procedure for subsidiary protection is to check whether the person still needs protection. The argument that the applicant should submit a new application in case of new circumstances is therefore not in line with the purpose of this procedure. Besides, this would represent too big of a burden for the applicant. The argument that such procedure (where all the reasons should be examined) would not be in line with the principle of procedural economy is not substantiated. The principle of economy requires savings in costs and time, but not to the detriment of the principle of seeking the material truth and the principle of legality. Requiring the applicant to start a new procedure would actually go against the principle of procedural economy.
Outcome:
The Constitutional Court declared as unconstitutional the Article 106(1) of International Protection Act (IPA), which stated that when examining a request for prolonging subsidiary protection, the only reasons that should be examined are reasons based on which subsidiary protection was granted.
The Constitutional Court annulled the judgements of the Supreme and Administrative courts and remitted the case back down and to be assessed in the new procedure.
Observations/comments:
This case finally remedied a very problematic issue in Slovenia, which mainly affected UAMs from Afghanistan. Afghan children would usually receive subsidiary protection until they were 18, based only on the fact that a return of an UAM to Afghanistan would represent a risk of serious harm. Other grounds of their claim were rejected, sometimes without a proper examination. The applicants would, in most cases, not appeal because an appeal can only be made against the operative part of the judgement, which was positive (subsidiary protection was granted) and therefore cannot be appealed against. In the procedure of renewal of their subsidiary protection the applicants wanted to present new evidence on their past persecution/serious harm, or evidence related to their personal circumstances, but the Asylum authority refused to examine said evidence since they were not connected to the reasons based on which subsidiary protection was granted. The applications would, therefore, be rejected because the initial reasons (being a minor) no longer existed.
Moreover, the Constitutional Court’s judgment has an important impact on the right to an effective remedy and right to be heard, even though these rights were not explicitly addressed by the Court.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99 |
| CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland |
| ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - Salah Sheekh v The Netherlands, Application No. 1948/04, |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
Other sources:
H. Battjes, European Asylum Law and International Law, Martinus Njihoff Publishrs, Lieden/Boston 2006; S. H. Legomsky, Legal and Protection Policy Research Series, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection, UNHCR, Department of International Protection, Geneva 2003; S. Rakočevič, Predpisi o tujcih in azilu, Uradni list Republike Slovenije, Ljubljana 1999; K. Halibronner, EU Immigration and Asylum Law, Commentary on EU Regulations and Directives, Verlag C. H. Beck, München 2010; V. Androjna, E. Kerševan, Upravno procesno pravo, Upravni postopek in upravni spor, GV Založba, Ljubljana 2006.