Czech Republic - Supreme Administrative Court, 30 December 2008, D.B. v Ministry of Interior, 8 Azs 37/2008-80

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Headnote: 

The case concerned an accelerated procedure decision. The applicant, an Uzbek national, claimed asylum only after he feared removal from the Czech Republic, his application was therefore rejected as unfounded by the Ministry of the Interior. However, the Supreme Administrative Court (SAC) disagreed and set a three condition test to be applied in order to determine when an application is unfounded. The SAC also pointed out that the grounds for applying for international protection can be based on events which had taken place since the applicant left the country of origin.

Facts: 
The applicant, a student from Uzbekistan residing in the Czech Republic, spoke on a Czech radio station about the economic situation in Uzbekistan and criticised current development policies. Following his speech, he had difficulty in extending his passport through his father in Uzbekistan. Uzbek officers informed the applicant, that he was encountering these difficulties as a result of his speech, which contained inappropriate statements. This resulted in the applicant not being able to extend his study visa. The applicant then lodged an asylum application in the Czech Republic. His application was rejected as manifestly unfounded due to the fact that at the time of lodging his application, the applicant’s visa status was only a “departure order” (see comments below). The Ministry of Interior (MOI) applied § 16(2) of the Asylum Act which corresponds with Art 23(4)(j) of the Asylum Procedures Directive. The MOI concluded that the applicant submitted the asylum application merely to delay the enforcement of a decision on his removal from the Czech Republic. The applicant appealed to a regional court and his appeal was dismissed. He challenged it before the SAC.
Decision & Reasoning: 
 
The SAC evaluated the facts and concluded that:

When examining whether an asylum application is manifestly unfounded due to an alleged intention to avoid or delay a removal decision, it is necessary to pass the three conditions test that the court outlined in its previous decisions. All three conditions need to be fulfilled:

1) the applicant faces an imminent threat of expulsion or extradition
2) the applicant was able to lodge his asylum application earlier
3) it is obvious that the application was lodged “solely“ to avoid expulsion and/or extradition.
 
These conditions must be met cumulatively. Only then can a decision be in accordance with Art 13 and 18 of the Qualification Directive and Art 23(4)(3) of the Asylum Procedures Directive.

In this case, condition 1) was met, as the existence of a departure order was sufficient to prove an existing threat of removal. Condition 2) however was not met, as it had not been properly examined whether the applicant could have submitted the application earlier. Condition 3) was not met, as it was not proven whether the applicant submitted his application “solely” for purposes of avoiding expulsion. The applicant’s statements should have been examined in more detail, along with the situation in his country of origin for potential grounds to claim subsidiary protection. In his case, a status of refugee ‘sur place’ should have been examined in accordance with Art 5 of the Qualification Directive. The Court also noted that in the upcoming procedure it would also be important to examine, in accordance with Art 10(1)(e), 10(2) of the Qualification Directive, whether the applicant is considered by the authorities as having certain political opinions.
 
Outcome: 

The appeal was successful and the regional court decision annulled.

Observations/Comments: 

The so-called 'departure order' is similar to a visa but serves only for the purposes of leaving the country. It's validity varies from 7 to 60 days. If the person does not leave Czech territory within the given time limit a forced deportation can follow.

Case available on the website of the Supreme Administrative Court - www.nssoud.cz