Portugal - First Section of the Supreme Administration Court, 18/05/2017, proc. nº: 0306/17
| Country of Decision: | Portugal |
| Country of applicant: | Kyrgyzstan |
| Court name: | Supremo Tribunal Administrativo |
| Date of decision: | 18-05-2017 |
Headnote:
It is an appeal against the decision handed down by the Northern Central Administrative Court that denied the request to annul the order issued by the National Director of the Aliens and Borders Service.
The appeal was declared well-founded by the Supreme Administrative Court, considering the disregard of an essential formality that the law prescribes. Therefore, the decision determined the revocation of the judgment under appeal and the annulment of the contested act.
Facts:
The Applicant, a national of Kyrgyzstan, had a Schengen visa issued by the diplomatic authorities of the Republic of Lithuania.
In November 2015, the applicant asked for asylum in Portugal. The application for protection was considered inadmissible by the Portuguese authorities and it was determined that the applicant should be transferred to Lithuania.
Decision & reasoning:
The disregard towards an essential formality on procedures for accelerated processing in the domestic law of Portugal was determinant for the final decision.
The Portuguese Asylum Law has an exhaustive list of the accelerated procedure and inadmissibility clauses. The verification of those clauses determines, respectively, the preliminary rejection of the application for international protection, as manifestly unfounded, or its inadmissibility, with the consequent disregard of the analysis of the merits/fulfilment of the requirements for recognition of refugee status/granting of subsidiary protection.
Since Lithuania had already issued a visa for the applicant, the application is considered inadmissible. From that, it becomes subject to a special procedure for determining the State responsible for examining the application for international protection.
The rules of this procedure ensure the applicant's right to speak at a prior hearing after having access to the information essential to his request. That information must be in a written report.
However, in this case, the Administrative Court did not prepare a report. The Supreme Court considered the lack of preparation of this report disregard towards an essential formality. As such, the contested act was annulled and the administrative procedure resumed.
Outcome:
Appeal granted
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-277/11 M.M. v Minister for Justice, Equality and Law Reform, Ireland, Attorney General |