Dublin Seminar: 17/18 January 2014 Aspects of Judicial Use of COI - - PowerPoint PPT Presentation

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Dublin Seminar: 17/18 January 2014 Aspects of Judicial Use of COI - - PowerPoint PPT Presentation

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Dublin Seminar: 17/18 January 2014 Aspects of Judicial Use of COI in the CEAS Bernard Dawson Judge of the Upper Tribunal UTIAC UK Directive 2004/83/EC- Qualification Directive CHAPTER II ASSESSMENT OF APPLICATIONS FOR INTERNATIONAL

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Dublin Seminar: 17/18 January 2014

Aspects of Judicial Use

  • f COI in the CEAS

Bernard Dawson

Judge of the Upper Tribunal UTIAC UK

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Directive 2004/83/EC- Qualification Directive

CHAPTER II

ASSESSMENT OF APPLICATIONS FOR INTERNATIONAL PROTECTION

Article 4

Assessment of facts and circumstances

  • 1. Member States may consider it the duty of the applicant to submit as soon as possible all the

elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.

  • 2. The elements referred to in paragraph 1 consist of the applicant’s statements and all the

documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, travel documents and the reasons for applying for international protection.

  • 3. The assessment of an application for international protection is to be carried out on an

individual basis and includes taking into account:

(a) all relevant facts as they relate 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;

(b) the relevant statements and documentation presented by the applicant including information

  • n whether the applicant has been or may be subject to persecution or serious harm;
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(d) whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country;

(e) whether the applicant could reasonably be expected to avail himself or herself of the protection of another country where he or she could assert citizenship.

  • 4. The fact that an applicant has already been subject to persecution or serious harm, or to direct

threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

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  • 5. Where Member States apply the principle according to which it is the duty of the applicant to

substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met:

(a) the applicant has made a genuine effort to substantiate his application;

(b) all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation has been given regarding any lack of other relevant elements;

(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;

(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and

(e) the general credibility of the applicant has been established.

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Directive 2005/ 85/EC- Procedures Directive

Article 8

Requirements for the examination of applications

  • 1. Without prejudice to Article 23(4)(i), Member States shall

ensure that applications for asylum are neither rejected nor

excluded from examination on the sole ground that they have

not been made as soon as possible.

  • 2. Member States shall ensure that decisions by the determining

authority on applications for asylum are taken after an

appropriate examination. To that end, Member States shall

ensure that:

(a) applications are examined and decisions are taken individually,

  • bjectively and impartially;

(b) precise and up-to-date information is obtained from various

sources, such as the United Nations High Commissioner for

Refugees (UNHCR), as to the general situation prevailing in

the countries of origin of applicants for asylum and, where

necessary, in countries through which they have transited,

and that such information is made available to the

personnel responsible for examining applications and

taking decisions;

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(c) the personnel examining applications and taking decisions

have the knowledge with respect to relevant standards

applicable in the field of asylum and refugee law.

  • 3. The authorities referred to in Chapter V shall, through the

determining authority or the applicant or otherwise, have access

to the general information referred to in paragraph 2(b),

necessary for the fulfilment of their task.

  • 4. Member States may provide for rules concerning the

translation of documents relevant for the examination of applications.

European Union

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Directive 2013/32/EU

Article 10

Requirements for the examination of applications

  • 1. Member States shall ensure that applications for international protection are neither rejected

nor excluded from examination on the sole ground that they have not been made as soon as possible.

  • 2. When examining applications for international protection, the determining authority shall first

determine whether the applicants qualify as refugees and, if not, determine whether the applicants are eligible for subsidiary protection.

  • 3. Member States shall ensure that decisions by the determining authority on applications for

international protection are taken after an appropriate examination. To that end, Member States shall ensure that:

(a) applications are examined and decisions are taken individually, objectively and impartially;

(b) precise and up-to-date information is obtained from various sources, such as EASO and UNHCR and relevant international human rights organisations, as to the general situation prevailing in the countries of origin of applicants and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;

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(c) the personnel examining applications and taking decisions know the relevant standards applicable in the field of asylum and refugee law;

(d) the personnel examining applications and taking decisions have the possibility to seek advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, child- related or gender issues.

  • 4. The authorities referred to in Chapter V shall, through the determining authority or the

applicant or otherwise, have access to the general information referred to in paragraph 3(b), necessary for the fulfilment of their task.

  • 5. Member States shall provide for rules concerning the translation of documents relevant for the

examination of applications.

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COI Judicial Checklist

COI JUDICIAL CHECKLIST

When assessing Country of Origin Information (COI) in the context of deciding asylum or asylum-related cases judges may find the following 9 questions useful:

Relevance and adequacy of the Information

i) How relevant is the COI to the case in hand?

ii) Does the COI source adequately cover the relevant issue(s)?

iii) How current or temporally relevant is the COI?

Source of the Information

iv) Is the COI material satisfactorily sourced?

v) Is the COI based on publicly available and accessible sources?

vi) Has the COI been prepared on an empirical basis using sound methodology?

Nature / Type of the Information

vii)Does the COI exhibit impartiality and independence?

viii) Is the COI balanced and not overly selective?

Prior Judicial Scrutiny

ix) Has there been judicial scrutiny by other national courts of the COI in question?

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COI Due Process Standards

COI DUE PROCESS STANDARDS: possible list (not at this stage in any particular order)

In relation to government use:

Transparency

(=availability of COI to all parties in the decision-making procedure)

Use of publicly available COI

Duty to state (COI) facts accurately

Duty to act fairly (impartiality and neutrality of research)

Duty to disclose to an applicant clear particulars of any information, including COI, that is relevant to the decision (quaere whether COI which is general in nature and does not related to particular asylum seeker is covered). But duty to disclose may be overridden if disclosure would be likely to endanger the safety of any person or the information is classified)

Equality of arms

Sufficiently time for parties to comment on relevant COI

Duty of data protection

Duty to decide on the basis of up-to-date (COI) information

Duty to give reasons (obligation for the decision-maker to show the connection between his/her decision and COI if relevant to the case)

(e.g duty to rely on publicly available information only)

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Compliance with procedure rules

(e.g. if legislation or policy governing designation of a country as a safe third country requires the government department to consult with certain bodies)

Duty to consult / duty to consult widely

(e.g. if state makes an order designating a country as “safe”)

Duty to treat like cases alike (e.g. to make sure COI is applied reasonably and consistently)

Duty to keep legislation under periodic review (e.g. in relation to designation of certain countries as safe)

Duty to avoid misuse of power

In relation to judicial proceedings:

Right to an effective remedy

Right to be heard

(e.g. opportunity for the A to respond to COI relied upon by government)

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Duty to ensure A understands the essential and significant issues upon which the court proceedings turn

Judicial instance not to conduct its own research (without giving opportunity of parties to respond)

Right to a fair hearing

(e.g. a case which has been put into an accelerated procedure which denies the applicant the ability to rebut COI-based presumption of safety; e.g. would be unfair to rely upon evidence which neither party has had the opportunity to test).

Adequate time to prepare and/or respond to relevant COI

Equality of arms

(includes duty to submit relevant facts and evidence

Duty to take into account updated evidence (ex nunc principle)

Failure to take into account relevant factors

Taking into account of irrelevant factors

Abuse of power/illegality

Proper opportunity to rebut presumption of safety and efficacy of country of transfer’s asylum procedures (e.g. within Europe and the MSS v Belgium and NS cases).

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Mogadishu