Slovakia - Supreme Court of the Slovak Republic, 11 September 2012, B.S. v Ministry of Interior of the Slovak Republic, 1Sža/18/2012

Country of Decision:
Country of Applicant:
Date of Decision:
11-09-2012
Citation:
1Sža/18/2012
Court Name:
Supreme Court of the Slovak Republic
National / Other Legislative Provisions:
Slovakia - Zákon 480/2002 Zb. o azyle a o zmene a doplnení niektorých zákonov (Act No 480/2002 on asylum and amending certain other acts) - § 2(f)(3)
Slovakia - Zákon 480/2002 Zb. o azyle a o zmene a doplnení niektorých zákonov (Act No 480/2002 on asylum and amending certain other acts) - § 13(a)
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Headnote: 

“If an asylum applicant is shown to be in need, and if it can be expected that an applicant’s fundamental human rights and freedoms would or might be infringed, the administrative authority must give the applicant for asylum or subsidiary protection the benefit of the doubt in relation to the facts stated by the applicant.”

Facts: 

The applicant was born and lived all of his life in the Ivory Coast. His father was a citizen of Somalia, his mother a citizen of the Ivory Coast. The applicant claimed that he was a Somali national, but presented no evidence in support of his claim, and never had any proof of citizenship. He stated that a birth certificate should have been issued after his birth.

The applicant requested international protection on the grounds that he would be exposed to serious harm if he returned to Somalia on account of indiscriminate violence in the armed conflict. He presented as evidence in the procedure before the Supreme Court of the Slovak Republic the original extract from a birth register for his son, where it is stated that the applicant is a Somali national. He mentioned as further evidence in his application that discrimination was practiced in the Ivory Coast against the Dioula minority, to which his mother belonged. He saw discrimination in the fact that he had not been granted citizenship, which meant that he could not enter the labour market and his son could not attend school like the children of Ivory Coast citizens.

The Ministry of Interior – Migration Office refused to grant asylum to the applicant, refused to offer subsidiary protection, and judged the Ivory Coast to be the applicant’s country of origin. The applicant then appealed to the Regional Court in Bratislava, which, however, upheld the decision not to grant asylum and not to provide subsidiary protection as correct and lawful. The applicant therefore appealed to the Supreme Court of the Slovak Republic.

Decision & Reasoning: 

The Supreme Court of the Slovak Republic reversed the decision of the Regional Court, set aside the decision of the Ministry of Interior – Migration Office to refuse subsidiary protection, and referred the case back to the Migration Office.

The Supreme Court of the Slovak Republic referred in its decision to a principle specific to procedures on international protection and assessments of the credibility of an asylum applicant. “If an applicant is clearly in distress and if it can be expected that an asylum applicant’s fundamental human rights and freedoms would or might be infringed, the administrative authority must give the asylum applicant or subsidiary protection applicant the benefit of the doubt with regard to the facts stated by the applicant.” The administrative authority does not, however, have to apply the principle if it has proved that the applicant’s claim lacks credibility, but the administrative authority failed to do so in the procedure in question.

The Supreme Court of the Slovak Republic also stated in the decision that the question of determining the applicant’s citizenship was decisive and crucial to an assessment of which country was to be regarded as the country of origin in relation to which the relevant information should be examined for the purposes of granting subsidiary protection. “Citizenship expresses a permanent legal relationship between a natural person and a specific state, and it is not a condition for the continuation of this relationship that the citizen must live in the territory of that state.”

Where the citizenship of an applicant cannot be determined clearly, the country of citizenship may be deemed to be the country in which he habitually resided and thus the Ivory Coast (the first step of the test). The second question to be examined is whether the applicant is a citizen of the Ivory Coast or a foreigner (the second step of the test) and then whether he faces the danger of serious harm, and specifically discrimination resulting from the fact that he does not have citizenship of the Ivory Coast (the third step of the test).

“The conclusion that no domestic armed conflict is under way in the country of origin cannot be drawn from the administrative authority’s finding that the situation is relatively peaceful in some parts of the country, since the information on the country of origin confirms that part of the country is not under government control and clashes are taking place in the country between the civilian population and security forces, resulting in civilian victims.”

The Supreme Court of the Slovak Republic referred in the decision to its earlier decision - 1Sža/77/2010 of 12.10.2010, according to which: “The meaning and purpose of subsidiary protection is to provide subsidiary protection and the possibility of legal residence in the territory of the SR (Slovak Republic) to international protection applicants who have not been granted asylum, but in respect of whom it would (for the reasons listed in the Asylum Act) be unacceptable, unreasonable or otherwise undesirable to demand deportation. Although the application of subsidiary protection is connected with the objective risks to the applicant following a possible return to the country of origin, and thus partially with different factors arising at a different time than is the case in the application of asylum, the claims of the applicant are to a large extent decisive when deciding whether or not to grant subsidiary protection, and should be taken as the starting point.”

Outcome: 

Appeal upheld

The Supreme Court of the Slovak Republic reversed the decision of the Regional Court, setting aside the decision of the Ministry of Interior – Migration Office in so far as it refused to provide subsidiary protection, and referring the case back to that authority.

Case Law Cited: 

Slovakia - Supreme Court of the Slovak Republic, 12 October 2010, 1Sža/77/2010