Czech Republic - Supreme Administrative Court, 17 September 2010, M.Y. v. Ministry of Interior, 2 Azs 14/2010-92
| Country of Decision: | Czech Republic |
| Country of applicant: | Unknown |
| Court name: | The Supreme Administrative Court (SAC) |
| Date of decision: | 17-09-2010 |
| Citation: | n.2Azs14/2010-92 |
Keywords:
| Keywords |
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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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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
Headnote:
The case concerned a subsequent application for international protection based on the right to a family and private life (Art 8 of the European Convention on Human Rights (ECHR)) The application was rejected as inadmissible by the Ministry of Interior (MOI) on the basis that Art 8 considerations were deemed not applicable in asylum cases. However, the Supreme Administrative Court (SAC) made two important findings. Firstly it held that even if an application was considered to be inadmissible, there was an obligation to evaluate the risk of refoulement under Art 33 of 1951 Refugee Convention. Secondly, as provided by § 14(a)(2)(d) of the Asylum Act, in exceptional cases, to grant international protection for family life reasons, these have to be accepted as new elements in subsequent proceedings.
Facts:
The applicant lodged a subsequent application for international protection two years after her previous application. She presented new elements and findings to be examined: her newly established family life with an EU (Czech) citizen with whom she was expecting a child. The MOI classified the application as inadmissible as the applicant did not present any new elements or findings which would be of relevance to the asylum claim. The MOI held that the right to private and family life is not enumerated among the grounds for claiming international protection. As the application was classified as inadmissible, the country of origin situation was not examined further and the procedure was terminated. The applicant appealed to a regional court and her appeal was dismissed. The applicant challenged this decision before the SAC.
Decision & reasoning:
Firstly, the situation in the applicant’s country of origin must be examined within the context of a claim for subsidiary protection as well as in a procedure of inadmissible subsequent applications; otherwise there is a risk of breaching Art 33 of the 1951 Refugee Convention (non-refoulement obligation).
Secondly, to initiate a subsequent asylum procedure, two conditions must be met cumulatively as defined in previous judgements of the court - 1) the applicant must provide new elements or findings, 2) which through no fault of the applicant have not been examined in the previous asylum procedure. In this case, condition two was met, as the family life started after the first procedure had finished and the authorities had not previously considered it.
New elements or findings were defined by the court as “those, which can have, prima facie, an impact on the personal legal circumstances of the applicant”. Thus, not strictly only for asylum grounds. It is then the purpose of the subsequent asylum procedure to classify whether the particular elements or findings can be subsumed under international protection in the form of asylum, subsidiary protection, humanitarian asylum or none of these. In this particular case, the Regional Court failed to conclude that the element of family life (Art 8 of the ECHR) could not potentially be subsumed under provision § 14 and 14(a) of the Asylum Act (humanitarian or subsidiary protection provision). The court finally noted that in the new procedure it would be necessary to examine all factors in accordance with the EctHR jurisprudence (Bensaid v.United Kingdom).
Outcome:
The appeal was successful and the regional court decision annulled.
Observations/comments:
Case available on the website of the Supreme Administrative Court - www.nssoud.cz