Slovakia - Supreme Court , 22 February 2011, S. v Ministry of Interior of the Slovak Republic, 1Sža/5/2011

In the opinion of the Supreme Court, it was ultimately impossible to exclude the possibility that the Applicant’s claim was based on the truth. Moreover, during the administrative proceedings, the Applicant had submitted evidence – documents confirming his identity and his claims that his family was provided with protection in his country of origin by UNRWA, and the Migration Office was unable to prove that, despite the contradictions in the statements, which the Applicant himself acknowledged (and later explained), he had not been telling the truth in the claim regarding this substantial fact:in the case in question, the Applicant claims that he left the country due to fear for his life and that his family enjoyed the protection of UNRWA in his country of origin.

The Supreme Court therefore did not agree with the Regional Court’s opinion concerning the Applicant’s trustworthiness. It was impossible to claim that the Applicant’s statement in this regard was not consistent and free of internal contradictions throughout the proceedings. His claims are essentially comprehensible and consistent. Moreover, his claims are confirmed by the evidence submitted in photocopies in the administrative proceedings and in originals in the court proceedings, and it must be emphasised that the administrative authority was unable to prove the opposite.

The procedure and decision-making of the court in the appeal against the Migration Office’s decision not to grant asylum constitutes a procedure for reviewing the legality of the decision pursuant to Part V of the Civil Procedure Code and not a continuation of the administrative procedure. It is therefore not the role of the court of first instance or the appeal court to add to the argumentation on the merits of the Migration Office’s decision or the legal argumentation, and neither is it their role to take evidence in relation to the facts, the finding of which is a role of the administrative procedure.

As the finding of fact on which the administrative decision was based was contrary to the content of the files, the Regional Court should have set aside the decision of the Migration Office on the basis of the foregoing, and referred the case back to the Migration Office. Inasmuch as the Regional Court did not decide thus, it was therefore not right to set aside the decision of the Regional Court and refer the case back for a fresh assessment by the Court. The appeal court concluded instead that the decision of the court of first instance should be amended such that the Migration Office’s decision be set aside and the case referred back to it.

The Supreme Court considered it necessary for the Migration Office to remedy the deficiencies in subsequent proceedings. It would have to reassess the facts asserted and later proved by the Applicant, including the fact that the Applicant and his family enjoyed UNRWA protection in his country of origin. It would also have to assess the status of the Applicant in terms of Article 1D of the Refugee Convention, in particular with reference to Article 12(1)(a) of ‘Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’(hereinafter ‘the Qualification Directive’), the content of which is identical to the conclusions of the UNHCR Revised Note on the Applicability of Article 1D of the 1951 Convention to Palestinian Refugees, to which the Applicant referred during the proceedings.Under Article 12(1)(a) of the Qualification Directive, a third-country national or stateless person is excluded from being a refugee if he or she falls within the scope of Article 1D of the Refugee Convention in relation to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the status of such persons being finally settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, such persons shall ipso facto be entitled to the benefits of this Directive.

The Supreme Court draws attention in this context to the judgment of the Court of Justice (Grand Chamber) of 17 June 2010 in case C-31/09 Nawras Bolbol v Bevándrlási és Állampolgársági Hivatal, in which the Court, with regard to a reference for a preliminary ruling on the interpretation of Article 12(1)(a) of Council Directive 2004/83/EC, stated that the provisions of the Directive must be interpreted in the light of its general scheme and purpose, while respecting the Refugee Convention and the other relevant treaties referred to in point (1) of the first subparagraph of Article 63 EC. Those provisions must also, as is apparent from recital 10 in the preamble to the Directive, be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

According to the Court, Article 1D of the Refugee Convention, which is referred to in Article 12(1)(a) of the Directive, limits itself to excluding from the scope of the Convention only those persons who “at present have” protection or assistance from bodies or specialist organisations of the UN other than the UNHCR.

Article 1D of the Refugee Convention makes it clear that the clause contained therein on exclusion from the status of refugee applies only to persons who are actually making use of assistance provided by UNRWA, and this must be interpreted strictly, i.e. it cannot also apply to persons that have made use of or might make use of protection or assistance. For the purposes of Article 12(1)(a) sentence one of the Directive, according to the Court, a person makes use of the protection or assistance of a UN agency other than the UNHCR when such a person truly makes use of such protection or assistance.

With reference to the above, the appeal court therefore considered the Migration Office’s legal opinion as expressed in the decision to refuse subsidiary protection to be incorrect,, although expressed only on a provisional basis (in case it would be proven that the Applicant had been provided with protection by UNRWA in his country of origin), and that the exclusion clause could not be applied to the Applicant (exclusion from the status of refugee within the meaning of Article 1D of the Refugee Convention of 1951) because, while the Migration Office may be correct in arguing that the Convention does not apply to persons who are at present receiving protection or assistance from UN bodies or agencies other than the UNHCR, in the case in question the Migration Office must take account of the fact that the Applicant no longer enjoys the protection of UNRWA because he had left his country of origin.

It is clear from Article 12(1)(a) of the Directive that the decisive issue is not the reason for which the protection ceased where such a person would be entitled ipso facto to the benefits arising from this Directive.

According to the appeal court, the decision was thus based on an incorrect legal assessment and, with reference to the foregoing, it will therefore be necessary for the Migration Office to reassess its decision in light of these factors and the legal opinion expressed by the Supreme Court, by which the administrative authority is bound under Section 250r of the Civil Procedure Code.

For the reasons set out above, the Supreme Court concluded that there was a need to amend the judgment of the Regional Court under Section 220 of the Civil Procedure Code in order to have the decision of the Migration Office set aside and the case referred back to the Migration Office.