Administration of justice / Effective remedy

1 November 2018 | Publisher: UN High Commissioner for Refugees (UNHCR) | Document type: General Comments/Recommendations

The second subparagraph of Article 46(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that subsidiary protection status, granted under legislation of a Member State such as that at issue in the main proceedings, does not offer the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical. Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

On 18 October, the Court of Justice of the European Union (CJEU) delivered its judgment on a preliminary reference submitted by the Slovenian Supreme Court, on the difference between refugee and subsidiary protection statuses. The need for a preliminary ruling arose in the context of asylum proceedings, where a minor national of Afghanistan was granted subsidiary protection status, following several unsuccessful legal challenges. When the issue was brought before the Supreme Court of Slovenia, the domestic judges decided to refer a question to the CJEU regarding the admissibility of the applicant’s appeal against his subsidiary protection status in the context of sufficient interest, according to Article 46 (2) of Directive 2013/32/EU. The question was centred on the difference in cessation and duration requirements of the two statuses, as well as the ancillary rights thereof. The Court first noted that the recitals of Directive 2011/95/EU indicate that EU legislators intended to establish an integral framework for all beneficiaries of international protection, save for objectively necessary exceptions for beneficiaries of subsidiary protection status. After analysing the content of Article 47 of the Charter of Fundamental Rights, the Court stated that this article sets a requirement for a restrictive interpretation of any exception from the right to an effective remedy before a court, such as the one introduced by the aforementioned article of Directive 2013/32/EU. As such, for a subsidiary protection beneficiary’s action to be deemed inadmissible due to lack of sufficient interest, the rights and benefits granted must indeed be the same as those the applicant would enjoy if they held refugee status, even if the difference only encompasses ancillary rights. Moreover, a difference between the duration of the two statuses has to be regarded as difference in rights and benefits that justifies an admissible legal challenge. Lastly, any relevant assessment on the existence of different rights and benefits for international protection beneficiaries should not depend on the appellant’s individual situation, but rather on an overall assessment of national legislation. According to the Court’s restrictive interpretation, this is dictated by the text of Article 46 (2), as well as the need for the predictability of this legal provision, which would vary unacceptably according to each applicant’s personal circumstances. ELENA Weekly Legal Update - 19 October 2018

18 October 2018 | Judicial Body: European Union: Court of Justice of the European Union | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Complementary forms of protection - Decision on admissibility - Effective remedy | Countries: Afghanistan - Slovenia

In the instant case, the Applicant maintains that he is of Tanzanian nationality, which is being contested by the Respondent state. ln the circumstance, it is necessary to establish on whom lies the burden of proof. lt is the opinion of the Court that, since the Respondent State is contesting the Applicant's nationality held since his birth on the basis of legal documents established by the Respondent State itself, the burden is on the Respondent state to prove the contrary.

22 August 2018 | Judicial Body: African Court on Human and Peoples' Rights | Document type: Case Law | Topic(s): Burden of proof - Effective remedy - Expulsion - Withdrawal of nationality | Countries: Tanzania, United Republic of

This request for a preliminary ruling concerns the interpretation of Article 12(1) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), and Article 35 and Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

25 July 2018 | Judicial Body: European Union: Court of Justice of the European Union | Document type: Case Law | Legal Instrument: 2011 Recast Qualification Directive (EU) | Topic(s): EU Qualification Directive - Effective remedy - Exclusion clauses - Palestinian | Countries: Bulgaria - Palestine, State of

5 June 2018 | Judicial Body: Council of Europe: European Court of Human Rights | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Arbitrary arrest and detention - Deportation / Forcible return - Effective remedy - Freedom from torture, inhuman and degrading treatment - Prison or detention conditions | Countries: Kazakhstan - Türkiye

5 June 2018 | Judicial Body: Council of Europe: European Court of Human Rights | Document type: Case Law | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Arbitrary arrest and detention - Effective remedy - Freedom from torture, inhuman and degrading treatment | Countries: Kazakhstan - Türkiye

Les mots « et dans les délais » figurant à la première phrase du paragraphe IV de l’article L. 512-1 du code de l’entrée et du séjour des étrangers et du droit d’asile, dans sa rédaction résultant de la loi n° 2016-274 du 7 mars 2016 relative au droit des étrangers en France, sont contraires à la Constitution.

1 June 2018 | Judicial Body: France: Conseil constitutionnel | Document type: Case Law | Topic(s): Appeal / Right to appeal - Effective remedy | Countries: France

May 2018 | Publisher: United Kingdom: Home Office | Document type: Country/Situation Specific Position Papers