Italy - Tribunal of Roma, 18 September 2018, R.G. no. 50192/2018
Keywords:
| 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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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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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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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:
In the absence of EU rules concerning the procedural requirements with regard to the submission and examination of an application for international protection, Member States must determine those requirements provided that they do not render in practice impossible or excessively difficult the exercise of the right to seek asylum.
Facts:
The applicant, an Iraqi Kurdish citizen, tried to apply several times for international protection unsuccessfully. He could not gain access to the competent authority because of a hostile service and endless queues. He appealed before the Court requesting that the police register his application and grant a valid resident permit to avoid the risk of expulsion.
Decision & reasoning:
The Court stated that police authorities must provide minimum guarantees to ensure the effective exercise of the right to seek asylum. For instance, a mechanism of bookings must be provided to avoid endless queues. Additionally, police authorities do not have any discretional power in accepting the applications. Subsequently, in this case preventing access to the office is equivalent to preventing effective access to international protection.
Outcome:
Appeal granted,
Observations/comments:
This case summary was written by Laura Palazzetti.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| • Legislative Decree No. 25/2008 |
| L. No. 241/1990 |
| Legislative Decree No. 142/2015 |
| Italian Constitution |
| Article 10 (3) |
Cited Cases:
| Cited Cases |
| CJEU - Case C-429/15, Evelyn Danqua v Minister for Justice and Equality Ireland and the Attorney General |