An applicant requested international protection on 18 May 2022 in Belgium. Following the applicant’s request for international protection, the applicant was not granted accommodation or other material assistance by the Federal Agency for the reception of asylum seekers (Fedasil). The applicant did not have the financial means to procure private accommodation and therefore had no choice but to sleep on the street without access to appropriate sanitary facilities or enough food.
On 2 June 2022, the applicant submitted a written request for accommodation to Fedasil, through their legal representative. The request outlined the precarious situation of the applicant and instructed Fedasil to reply within 24 hours. On the date of the decision, Fedasil had not yet responded to the applicant’s request.
Fedasil justified the situation, stating that their reception network was ‘saturated’. Fedasil asserted that their reception network had been operating at full capacity for several months and had an occupation rate of 99% at the time of the decision. Consequently, applicants for international protection who arrived at the National Arrival Centre, Le Petit Chateau, could not be transferred to other reception centres. According to Fedasil, the reception centre at Le Petit Chateau was also operating above capacity.
The court assessed recent caselaw pertaining to access to reception, including two judgements issued by Brussels Francophone Court of First Instance on 19 and 25 March 2022 which remained unsettled, and concluded that Fedasil persisted in implementing a policy of systematically violating reception laws. The court noted that the saturation of the reception network did not permit Fedasil to derogate from its legal obligations. Furthermore, the court concluded that Fedasil was obliged to provide appropriate reception conditions even in cases where applicants had previously made an application for international protection in another European Union member state, highlighting that the refusal to grant material assistance to individuals who had requested international protection constituted, prima facie, a violation of the Judgement of 19 January 2022 which ordered Fedasil to unconditionally grant material assistance to all applicants for international protection without delay. In this regard, the court ordered Fedasil to guarantee accommodation for the applicant in the present case either in a reception centre, ILA, hotel or any other suitable establishment that meets the standards outlined in Articles 2 and 60 of the law of 12 January 2007. The court further stipulated that Fedasil would be liable for a fine of €1000 for every night that the applicant is forced to sleep outside after the issuance of the decision.
The applicants, a woman and her minor daughter, were refused a residence permit in Denmark. They complained to the UN Children's Committee who issued views criticising the decision of the Danish authorities. The case was subsequently reopened by the Danish Refugee Appeals Board.
As an asylum motive, the applicants referred to the fact that, on return to India, the woman feared being killed by her husband. The applicant further noted that the spouse has also made threats in Denmark and was violent against her. The spouse was administratively expelled from Denmark in 2017 with an entry ban. The applicant has tried to divorce him, but this has not yet been successful. The spouse has threatened the family with harm to the applicant and the daughter. Last year, the family was convened at the police station. The applicant also refers, as an asylum motive, to the fact that she fears her parents who are against the marriage. The applicant also argued that she fears for the life of her daughter as the spouse had doubts as to whether the daughter was his child and threatened to kill the daughter. The applicant also referred, as an asylum motive, to the fear of the authorities in India who cannot provide her protection as women in India have limited rights.
The Refugee Board considered that the applicant has shown that she and her daughter cannot be referred to seeking government protection in India, as the applicant comes from a caste lower than that of her husband, that her brother-in-law works for the military, and that her husband’s family is linked to senior politicians. The Refugee Board considered that the applicant and the daughter would be in a concrete and individual risk of abuse under Section 7 (2) of the Aliens Act if returned to India. The Refugee Board therefore granted the applicant and her daughter a residence permit pursuant to Paragraph 7 (2) of the Aliens Act.
A family from Ukraine applied for international protection on 12 December 2016. The mother of the family stated they are from the Ukrainian region of Dnepropetrovsk, where the security situation is poor, vehicles with passengers are shelled, and explosions occur. The family claimed to be persecuted there as the father is thought to be a Russian subversive and separatist. Two members of the family also claimed that they had received summons from Ukrainian state authorities, against whom the father is charged with membership of a separatist group, although the father denied this. The father alleged that when he travelled to Russia for work, he was subjected to interrogations, searches, and threats at the Russian-Ukraine border.
The request for international protection was rejected as the applicants provided no evidence and the court determined that the applicants are not in danger in the territory of Ukraine. The applicants filed an appeal against the court’s decision which the Municipal Court of Prague dismissed. The applicants filed a cassation complaint against the Municipal Court of Prague since they did not agree with the contested decision.
The Supreme Administrative Court interpreted the cassation complaint to be justified and overturned the Regional Court’s ruling of 24 September 2021. The Supreme Administrative Court ruled it was important to consider that, since the Regional Court’s decision, the Russian Federation’s attack on Ukraine in 2022, had altered the security situation in Ukraine. The provisions of Articles 2 and 3 of the European Convention on Human Rights as well as the principle of non-refoulement were also taken into consideration in the ruling. The judgment of the Regional Court was overturned, and the matter was returned to the court for further proceedings.
The Supreme Administrative Court further ruled that it may not be necessary to refer the applicants to the possibility of submitting a new application for recognition of international protection or to use temporary protection under Act No. 65/2022, the national law implementing the EU Temporary Protection Directive, as it cannot be assumed that it will apply to the applicant, who arrived on the territory long before 24 February 2022. The Supreme Administrative Court concluded the Regional Court would have to reassess the applicants’ request in light of the new facts.
The applicant, a Ukrainian national, filed a subsequent request for international protection on 3 June 2021. In his subsequent application, the applicant indicated that his mother had died, and he had nowhere to return to in Ukraine. He did not want to leave his family and had been residing in the Czech Republic with his partner and daughter, both of whom had permanent residency permits.
The Ministry of the Interior ruled that the applicant's request for international protection was inadmissible as he did not present any facts or findings that had not already been investigated in the previous proceedings that would indicate he could be subject to persecution or risk serious damage. The applicant appealed the decision before the Municipal Court of Prague, which dismissed the case and upheld the Ministry of the Interior’s decision. The applicant filed a cassation complaint against the judgment of the Regional Court and drew attention to the Russian invasion of Ukraine and the deterioration of the security situation, which he said put him at risk of suffering serious harm to his health or losing his life.
The Supreme Administrative Court interpreted the cassation complaint to be justified and overturned the Regional Court’s ruling of 20 December 2021. The Supreme Administrative Court ruled that since the Regional Court’s decision, the Russian Federation’s attack on Ukraine in 2022 had resulted in a substantial change in the security situation in Ukraine. The decision also considered the provisions of Articles 2 and 3 of the European Convention on Human Rights as well as the non-refoulement principle. The case was returned to the Regional Court for additional procedures.
The Supreme Administrative Court further ruled that it was not necessary to refer the applicant to the possibility of submitting a new application for recognition of international protection or to use temporary protection under Act No. 65/2022, the national law implementing the EU Temporary Protection Directive, as it cannot be presumed that it will apply, as the applicant arrived in the Czech Republic long before the war started on 24 February 2022. The Supreme Administrative Court concluded the Regional Court would have to reassess the applicants’ request in light of the new facts.
Case registered before the CJEU under C-352/22
The High Administrative Court referred the following question to the CJEU for a preliminary ruling:
Must Article 9(2) and (3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 (‘Procedures Directive’), in conjunction with Article 21(1) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 (‘Qualification Directive’), be interpreted as meaning that the final recognition of a person as a refugee within the meaning of the Geneva Convention on Refugees in another Member State of the European Union is binding for the purposes of the extradition procedure in the Member State requested to extradite such a person on account of the obligation under EU law to interpret national law in conformity with the directives (third paragraph of Article 288 TFEU and Article 4(3) TEU), that is to say, is binding in such a way that extradition of the person to the third country or country of origin is thereby necessarily precluded until his or her recognition as a refugee has been revoked or has expired?
The judgment concerns the interpretation of Article 27(4) and Article 29(1) of the Dublin III Regulation. The requests for a preliminary ruling were made in proceedings between the Federal Republic of Germany and MA, PB (C‑245/21) and LE (C‑248/21) concerning decisions adopted by the Federal Office for Migration (BAMF), which declared the asylum applications inadmissible, found that there were no grounds prohibiting their removal to Italy and imposed entry and residence bans.
According to the CJEU Press Release of 22 September 2022:
"The suspension, due to the Covid-19 pandemic, of the implementation of a decision to transfer an asylum seeker to the Member State responsible does not have the effect of interrupting the six-month time limit for transfer. Once that period has expired, the requesting Member State becomes responsible for examining the asylum application.
During 2019, LE, MA and PB applied for asylum in Germany. However, LE had previously lodged an application for international protection in Italy and MA and PB had unlawfully entered the territory of the latter Member State, where they had been registered as applicants for international protection. Therefore, the competent German authority requested the Italian authorities to take back LE and to take charge of MA and PB on the basis of the Dublin III Regulation. That authority subsequently declared the asylum applications of the persons concerned inadmissible and ordered their deportation to Italy. In February 2020, the Italian authorities informed the German authorities that, due to the COVID-19 pandemic, transfers to and from Italy under the Dublin III Regulation would no longer take place. By decisions adopted in March 2020 and April 2020, the competent German authority suspended, until further notice, the implementation of the removal orders of the persons concerned pursuant, inter alia, to that regulation, on the grounds that, in view of the development of the Covid-19 pandemic, the implementation of such transfers was not possible. In judgments delivered in June 2020 and August 2020, the Verwaltungsgericht (Administrative Court, Germany) annulled the decisions by which the authority had declared the asylum applications of the persons concerned inadmissible and ordered their deportation. That court found that, even if Italy had been responsible for the examination of the asylum applications of the persons concerned, that responsibility had been transferred to Germany due to the expiry of the time limit for transfer provided for in the Dublin III Regulation, since the expiry of that time limit had not been interrupted by the abovementioned suspension decisions. The referring court, seized of an appeal on a point of law against those judgments, has doubts as to whether the decisions to suspend the implementation of the removal orders taken in respect of the persons concerned may have the effect of interrupting the time limit for transfer. The Court rules that the time limit for transfer provided for by the Dublin III Regulation is not interrupted where the competent authorities of a Member State adopt, on the basis of that regulation, a revocable decision to suspend the implementation of a transfer decision on the ground that such implementation is materially impossible because of the Covid-19 pandemic. Assessment of the Court The Court states first of all that, where an appeal against a transfer decision has been granted suspensive effect by a decision taken by the competent authorities under the conditions laid down by the Dublin III Regulation, the time limit for transfer runs from the final decision on that appeal, so that the transfer decision must be enforced no later than six months from the final decision on that appeal. That solution presupposes, however, that the decision to suspend the implementation of the transfer decision was adopted by those authorities within the limits of the scope of the provision providing for that suspensive effect. With regard to that scope, the Court emphasises, on the one hand, that the application of that provision is closely linked to the lodging by the person concerned of an appeal against the transfer decision, since the suspension ordered by those authorities is to occur ‘pending the outcome of the appeal’. On the other hand, as regards the context of that provision, it forms part of the section entitled ‘Procedural safeguards’. In addition, that provision is contained in an article entitled ‘Remedies’ and follows a paragraph dealing with the suspensive effect of the action against the transfer decision, which it complements by authorising Member States to allow the competent authorities to suspend the implementation of the transfer decision in cases where its suspension following the bringing of an action does not result from the effects of legislation or a judicial decision. Finally, as regards the objectives pursued by the Dublin III Regulation, the six-month time limit for transfers laid down in that regulation is intended to ensure that the person concerned is actually transferred as soon as possible to the Member State responsible for examining his or her application for international protection. Having regard to the effect of interrupting that time limit for transfer, which the suspension of the implementation of a transfer decision has, to interpret the provision concerned as allowing Member States to permit the competent authorities to suspend the implementation of transfer decisions on grounds which have no direct link with the judicial protection of the person concerned would risk rendering ineffective the time limit for transfer, altering the division of responsibilities between the Member States resulting from the Dublin III Regulation and substantially prolonging the processing of applications for international protection. Therefore, the Court holds that a suspension of the implementation of a transfer decision may be ordered by the competent authorities, within the framework defined for that purpose by the Dublin III Regulation, only where the circumstances surrounding that implementation mean that the person concerned must, in order to ensure his or her effective judicial protection, be authorised to remain in the territory of the Member State which adopted that decision until a final decision on the appeal has been taken. Therefore, a revocable decision to suspend the implementation of a transfer decision on the ground that its implementation is materially impossible cannot be regarded as falling within that framework. The fact that the material impossibility of enforcing a transfer decision may, under the national law of the Member State concerned, mean that that decision is unlawful cannot call that conclusion into question. First, the revocable nature of a decision to suspend the implementation of a transfer decision prevents that suspension from being regarded as having been ordered pending a ruling on the appeal against the transfer decision and with the aim of guaranteeing the judicial protection of the person concerned as it cannot be excluded that the suspension may be revoked before the appeal is decided. Secondly, it is clear from various provisions of the Dublin III Regulation that the EU legislature did not consider that the material impossibility of implementing the transfer decision should be regarded as justifying the interruption or suspension of the time limit for transfer."
The judgment concerns the interpretation of Articles 14 and 17 of the recast Qualification Directive, Articles 4, 10, 11, 12, 23 and 45 of the recast Asylum Procedures Directive, and Articles 41 and 47 of the EU Charter. The request for a preliminary ruling was made in proceedings brought by GM against the decision of the Hungarian National Directorate-General for Aliens Policing, which withdrew his refugee status and refused to grant him subsidiary protection.
According to the CJEU Press release of 22 September 2022:
"EU law precludes Hungarian legislation which provides that the person concerned or his or her legal representative can access the case file only after obtaining authorisation to that end, and without being provided with the grounds of the decision. EU rules do not allow the authority responsible for examining applications for international protection systematically to base its decisions on a non-reasoned opinion issued by bodies entrusted with specific functions linked to national security which have found that a person constitutes a danger to that national security.
In 2002, GM was given a custodial sentence by a Hungarian court for a drug trafficking offence. Having lodged an application for asylum in Hungary, GM was granted refugee status by judgment delivered in June 2012 by the Fővárosi Törvényszék (Budapest High Court, Hungary; ‘the referring court’). By decision adopted in July 2019, the Országos Idegenrendészeti Főigazgatóság (National Directorate-General for Aliens Policing, Hungary) withdrew his refugee status and refused to grant him subsidiary protection status governed by Directives 2011/95 and 2013/32, while applying the principle of non-refoulement to GM. That decision was taken on the basis of a nonreasoned decision issued by two Hungarian specialist bodies, the Alkotmányvédelmi Hivatal (Constitutional Protection Office) and by the Terrorelhárítási Központ (Counter-terrorism Centre), in which those two authorities concluded that GM’s stay constituted a danger to national security. GM brought an appeal against that decision before the referring court. The referring court is uncertain, in particular, as to the compatibility of Hungarian legislation on access to classified information with Article 23 of Directive 2013/32, which lays down the scope of the legal assistance and representation to which an applicant for international protection is entitled. The referring court also seeks to ascertain whether the Hungarian rule requiring that the determining authority base its decision on a non-reasoned opinion of the aforementioned specialist bodies, without itself being able to examine the application of the ground for exclusion from the protection at issue, is in compliance with EU law. The Court holds, inter alia, that Directive 2013/32, read in the light of the general principle relating to the right to sound administration and of Article 47 of the Charter of Fundamental Rights of the European Union, precludes national legislation which provides that, where a decision refusing an application for international protection or withdrawing that protection is based on information the disclosure of which would jeopardise the national security of the Member State in question, the person concerned or his or her adviser can access that information only after obtaining authorisation to that end, without being provided with the grounds on which such decisions are based; such information cannot be used for the purposes of subsequent administrative procedures or judicial proceedings. The Court also states that Directives 2013/32 and 2011/95 preclude national legislation under which the authority responsible for examining applications for international protection is systematically required, where bodies entrusted with specialist functions linked to national security have found, by way of a nonreasoned opinion, that a person constituted a danger to that security, to refuse to grant that person subsidiary protection, or to withdraw international protection previously granted to that person, on the basis of that opinion.
Findings of the Court
As regards, in the first place, the question of the compatibility with EU law of national legislation which limits the access of the persons concerned or of their representative to the confidential information on the basis of which decisions to withdraw or refuse to grant international protection have been adopted on grounds of national security, the Court recalls that, in accordance with Directive 2013/32, where Member States restrict access to information or sources the disclosure of which would jeopardise, in particular, national security or the security of those sources, the Member States must not only make access to such information or sources available to the courts having jurisdiction to rule on the lawfulness of the decision on international protection, but also establish in national law procedures guaranteeing that the rights of defence of the person concerned are respected. Although the Member States may, in that connection, grant access to such information to an adviser of the person concerned, such a procedure is not the only option available to the Member States to comply with that obligation. The practical arrangements of the procedures established to that end are a matter for the domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, provided that these are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness). The Court also recalls that the rights of the defence are not absolute rights, and the right of access to the file, which is the corollary thereto may therefore be limited, on the basis of a weighing up, on the one hand, of the right to sound administration and the right to an effective remedy of the person concerned and, on the other hand, the interests relied on in order to justify the non-disclosure of an element of the file to that person, in particular where those interests relate to national. Although that weighing up cannot lead, in the light of the necessary observance of Article 47 of the Charter, to depriving the rights of defence of the person concerned of all effectiveness and to rendering meaningless the right to a remedy provided for in the directive itself, it may, however, result in certain information in the file not being disclosed to the person concerned, where disclosure of that information is likely to jeopardise the security of the Member State concerned in a direct and specific manner. Consequently, the second subparagraph of Article 23(1) of Directive 2013/32 cannot be interpreted as allowing the competent authorities to place that person in a situation where neither he or she nor his or her representative would be able to gain effective knowledge, where applicable in the context of a specific procedure designed to protect national security, of the substance of the decisive elements contained in that file. The Court states in that connection that where the disclosure of information placed on the file has been restricted on grounds of national security, respect for the rights of defence of the person concerned is not sufficiently guaranteed by the possibility for that person of obtaining, under certain conditions, authorisation to access that information, together with a complete prohibition on using the information thus obtained for the purposes of the administrative procedure or any judicial proceedings. Furthermore, in ensuring that the rights of the defence are sufficiently guaranteed, the power of the court having jurisdiction to have access to the file cannot replace access to the information placed on that file by the person concerned or his or her adviser. As regards, in the second place, the compliance with EU law of the national legislation at issue, which confers a leading role on specialist national security bodies in the context of the procedure for adopting decisions to withdraw or refuse to grant international protection, the Court holds that it is for the determining authority alone to carry out, acting under the supervision of the courts, the assessment of the relevant facts and circumstances, including those relating to the application of those articles of Directive 2011/95 relating to revocation of, ending of or refusal to renew refugee status and those relating to exclusion from such status. That determining authority must, moreover, state in its decision the reasons which led it to adopt that decision. It cannot confine itself to giving effect to a decision, adopted by another authority, which is binding on the former authority under national legislation, and to take, on that basis alone, the decision not to grant subsidiary protection or to withdraw international protection previously granted. The determining authority must, on the contrary, have available to it all the relevant information and, in the light of that information, carry out its own assessment of the facts and circumstances with a view to determining the tenor of its decision and providing a full statement of reasons for that decision. Although some of the information used by the competent authority in conducting its assessment may in part be provided by specialist bodies responsible for national security, the scope of such information and its relevance to the decision to be taken must be freely assessed by that authority. The latter cannot therefore be required to rely on a non-reasoned opinion given by such bodies, based on an assessment the factual basis of which has not been disclosed to that authority."
The applicant, a Ukrainian national, first applied for protection on 28 June 2020, after he received a three-year administrative expulsion order from the police for illegal stay and violations of the law. In his application, he mentioned that he had been involved in the Ukraine war and that the police and military were looking for him. The applicant made the same argument in his second application on 5 July 2021. The only new fact presented was that his parents did not allow him in the house, and he had nowhere to return. However, none of his allegations indicated that he would face persecution or that he would risk serious harm for the reasons listed in line with the Asylum Act.
The applicant appealed the decision of the Ministry of the Interior before the Regional Court of Ostrava, which rejected the claim as unfounded and determined that the new fact stated by the applicant was not new since this was already known to him earlier and he had the opportunity to assert it. The Ministry of the Interior was criticised by the Regional Court for gathering information on the applicant's country of origin from sources before the proceedings on the applicant's first application. Ukraine was considered a safe country of origin by the Czech Republic, except for those regions controlled by separatists, which did not concern the applicant, and the applicant did not express any concerns that would lead to an assessment during the proceedings.
The applicant filed a cassation complaint against the decision of the Regional Court and argued that the court had correctly determined that the Ministry of the Interior had not addressed recent changes in the context of the country of origin, which would have had an impact on the evaluation of the repeated application. He argued that the Regional Court did not consider up-to-date information, thus failing to fulfil the obligation to ascertain the facts without reasonable doubt.
The Supreme Administrative Court ruled it was important to consider that, since the Regional Court’s decision on 29 October 2021, the Russian Federation’s attack on Ukraine in 2022, had altered the security situation in Ukraine. The provisions of Articles 2 and 3 of the European Convention on Human Rights as well as the principle of non-refoulement were also taken into consideration in the ruling. The judgment of the Regional Courts was overturned, and the matter was returned to the court for further proceedings.
The Supreme Administrative Court further ruled that it was not necessary to refer the applicant to the possibility of submitting a new application for recognition of international protection or to use temporary protection under Act No. 65/2022, the national law implementing the EU Temporary Protection Directive, as it cannot be presumed that it will apply, as the applicant arrived in the Czech Republic long before the war started on 24 February 2022. The Supreme Administrative Court concluded the Regional Court would have to reassess the applicants’ request in light of the current situation in Ukraine and the consequences resulting from it.
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