Effective Remedies The Recast Asylum Procedures Directive Luc - - PowerPoint PPT Presentation

Effective Remedies

The Recast Asylum Procedures Directive

Luc Leboeuf

PhD Candidate – Catholic University of Louvain-la-Neuve EDAL Conference (Dublin, 18 January 2014)

Centre Charles De Visscher pour le droit international et européen www.uclouvain.be/cedie Equipe droits européens et migrations

• 1. Main objectives of the recast

 Efficiency and respect of fundamental rights

› The Stockholm Programme, pt. 6.2.: ‘While CEAS should be based on high protection standards, due regard should also be given to fair and effective procedures capable of preventing abuse’ › COM(2011) 319fin: ‘A common asylum procedure should be fast and fair’

 Flexibility

› COM(2011) 319fin: ‘The system proposed […] is flexible enough to accommodate the particularities of national legal systems’ › Art. 5 RAPD: minimal harmonisation

• 2. Appeals procedures: Modifications brought

by the recast

• A. Decisions concerned

› Art. 39(1) APD: intermediate and final decisions on the asylum application » EXCEPTION at art. 39(5): when a status offering the same rights and benefits as the refugee status has been granted => lack of interest in the judicial examination of the decision on the asylum application › Art. 46(1) RAPD: intermediate and final decisions on the international protection application » Art. 46(2) RAPD: negative decision on the asylum application shall be submitted to judicial review EVEN IF subsidiary protection is granted

• B. Extent of the judicial examination

› Art. 39(3) APD: ‘Member States shall, where appropriate, provide for rules in accordance with their international obligations’ › Art. 46(3) RAPD: Full and ex nunc examination of both facts and points of law

• C. Automatic suspensive effect

› Art. 39(3) APD: ‘Member States shall, where appropriate, provide for rules in accordance with their international obligations’ › Art. 46(5) RAPD: automatic suspensive effect (right to remain) » Suspensive effect during a ‘reasonable’ time-limit to introduce the appeal; » Suspensive effect pending the outcome of the appeal.

• Art. 46(6): EXCEPTIONS to the automatic suspensive

effect: accelerated procedures

• (manifestly) unfounded applications;
• inadmissible applications;
• rejection of the reopening of the application after an

implicit withdrawal or abandonment;

• refusal to fully examine the application introduced

by an applicant coming from a ‘European safe third country’  Suspensive effect must be REQUESTED before a Court

• Art. 46(7): CONDITIONS for the exceptions to apply:
• 1. Legal and linguistic assistance;
• 2. One week to prepare the request for suspensive

effect;

• 3. Judicial examination of the negative decision on

both facts and points of law.

• 3. Appeals procedures and general

principles of EU law

The right to an effective remedy as a general principle of EU Law

› Recognised by the CJEU in H.I.D. and B.A. at para 81: ‘[…] in

accordance with a fundamental principle of European Union law, the decisions taken in relation to an application for asylum and the withdrawal of refugee status must be subject to an effective remedy before a court or tribunal […]’

› Enshrined by art. 47 EU Charter » Opinion of the AG of the CJEU in Samba Diouf at para 39:

‘once it is recognised and guaranteed by the European Union, that fundamental right [to an effective remedy] goes on to acquire a content of its own, the definition of which is certainly shaped by the international instruments on which that right is based, including, first and foremost, the ECHR, but also by the constitutional traditions from which the right in question stems and, together with them, the conceptual universe within which the defining principles of a State governed by the rule of law operate.’

• A. Is there a right to an effective remedy against

decisions refusing subsidiary protection?

› Yes, there is. » Art. 51 EU Charter: ‘The provisions of this Charter are addressed to […] the Member States only when they are implementing Union law’ » CJEU, M.M., para 82: the right to an effective remedy (art. 47 EU Charter) concerns decisions refusing subsidiary protection

• B. Does the right to an effective remedy imply a full

and ex nunc examination?

› Yes, it does. » CJEU, H.I.D. and B.A., para 93: ‘[…] the Refugee Appeals Tribunal has a broad discretion, since it takes cognisance of both questions of fact and questions of law […]’ » ECtHR, Salah Sheekh v. The Netherlands, para 136: ‘[…] in assessing an alleged risk of treatment contrary to Article 3 in respect of aliens facing expulsion or extradition, a full and ex nunc assessment is called for as the situation in a country

• f destination may change in the course of time’

• C. Does the right to an effective remedy imply an

automatic suspensive effect?

› Yes, it does under certain conditions. › ECtHR, M.S.S. v. Belgium and Greece, para 388: » ‘In the Court’s view the requirement flowing from Article 13 that execution of the impugned measure be stayed cannot be considered as a subsidiary measure’ » CONDITION: arguable complaint » QUESTION: How to translate that condition in a (general) legal instrument?

• ANSWER 1: Suspensive effect for every appeal

against a refusal of international protection;

• ANSWER 2: Suspensive effect must be requested

=> accelerated procedures when the applicant does not seem to have an arguable complaint

» CJEU, H.I.D. and B.A., para 74 (about first instance procedures):

‘[…] the establishment of a prioritised procedure such as that in the main proceedings must allow in full the exercise of the rights that that directive confers upon applicants for asylum […] In particular, […] [asylum seekers] must enjoy a sufficient period of time within which to gather and present the necessary material in support of their application, thus allowing the determining authority to carry out a fair and comprehensive examination of those applications’

» ECtHR, I.M. v. France, paras 150 and 151: reasonable time-limit + legal and linguistic assistance Compare with M.E. v. France, where the applicant stayed in France for 3 years before introducing his asylum application

• 4. Conclusion

APD RAPD General Principles Decision concerned Asylum application International protection application International protection application Assessment N/A Full and ex nunc Full and ex nunc Automatic suspensive effect? N/A Yes (with exceptions submitted to certain conditions) Yes (if arguable complaint)

 Thank you for your attention  Visit http://www.uclouvain.be/418487.html to discover EDEM’s studies, newsletters, database and other activities