Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The Finnish Immigration Service had rejected A’s asylum application. While A’s appeal against the decision was pending before an administrative court, A disappeared. When A had been missing for over two months, the administrative court decided that A’s appeal had lapsed. Several months later, A was transferred from Germany to Finland, based on the Dublin III Regulation. He then reapplied for asylum in Finland. The Finnish Immigration Service treated the second application as a subsequent application and found it inadmissible on grounds that it did not include any new elements or findings, which would significantly add to the likelihood of A qualifying as a beneficiary of international protection. Following A’s appeal, the administrative court ruled that A had not had an effective remedy in court. Because A’s appeal against the negative asylum decision had lapsed, there was no final decision on his first application, and his second application had been found inadmissible. The court returned the matter to the Immigration Service for a new consideration of the grounds for protection. The Immigration Service appealed against the decision to the Supreme Administrative Court. The high court based its ruling on the Aliens Act, the Asylum Procedures Directive (recast), the Dublin III Regulation and CJEU case law.
Key legal question raised by the Court:
The Supreme Administrative Court considered whether A had received a final decision on his first asylum application, after the administrative court had decided A’s appeal has lapsed. Another key issue was whether A’s second asylum application should have been treated as a subsequent application or a new application.
Outcome of the case:
The Supreme Administrative Court discussed the right to an effective remedy and the principle of effectiveness in cases where an applicant for international protection has withdrawn or abandoned his or her remedy. The Finnish Immigration Service had examined A’s first application and had rejected it. A had appealed against the negative asylum decision to an administrative court. He had thus had the right to an effective remedy before a court, in accordance with the Asylum Procedures Directive (Article 46) and the Charter (Article 47) and as required by the Dublin III Regulation (Article 18(2)). Article 47 of the Charter requires only that an applicant for international protection, whose application has been refused, should be able to enforce his rights effectively before a court. Article 46 of the Asylum Procedures Directive, read in conjunction with Article 47 of the Charter, does not establish common procedural standards. However, procedural rules shall not be such as to render exercise of rights deriving from EU law impossible or excessively difficult.
According to the Aliens Act (section 198a), an administrative court or the Supreme Administrative Court may decide that an appeal concerning international protection lapses if the appellant has left Finland voluntarily without any measures taken by authorities. Having lodged his appeal A had disappeared for months. Therefore, the administrative court could determine that A’s appeal lapses. Following this, the decision by the Finnish Immigration Service became final.
According to the Aliens Act (section 102), a subsequent application can be submitted if the applicant has received a final decision made by the Finnish Immigration Service or an administrative court concerning his or her previous application and while the applicant still resides in the country, or has left the country but only for a short period of time. The Supreme Administrative Court referred to recital 36 of the Asylum Procedures Directive, which states that it would be disproportionate to oblige Member States to carry out a new full examination procedure where an applicant makes a subsequent application without presenting new evidence or arguments. The court held that the definition of a ‘short period of time’ varies, depending on the circumstance of the case. In assessing the passage of time, the admission and readmission procedures and the time limits laid down in the Dublin III Regulation must be taken into account. In this case, A had left Finland for a period of over a year. His Dublin transfer to Finland had been postponed, because he had fled from the German authorities. The court concluded that under the circumstances in this case, A could be considered to have left Finland for a short period of time, in the meaning of the Aliens Act. His second application could be handled as a subsequent application.
The Supreme Administrative Court referred the case back to the administrative court for consideration of A’s appeal.
According to Article 46(1) of the Asylum Procedures Directive, Member States shall ensure that applicants have the right to an effective remedy against a decision taken on their application for international protection. As referred to above, it is in accordance with the CJEU case law pertaining to Article 46, the principle of effectiveness, and Article 47 of the Charter that the applicant has a right to an effective remedy before a court.
In the current case, the applicant has appealed to the administrative court against a decision by which the Finnish Immigration Service had rejected his first asylum application. Given this, the applicant has had a right to an effective remedy before a court, as required by Article 18(2) of the Dublin III Regulation and as provided for in Article 46 of the Asylum Procedures Directive and Article 47 of the Charter.
Jäsenvaltioilla on menettelydirektiivin 46 artiklan 1 kohdan perusteella velvollisuus varmistaa, että hakijoilla on käytettävissään tehokkaita oikeussuojakeinoja kansainvälistä suojelua koskevassa asiassaan. Edellä tässä päätöksessä viitatun, mainittua artiklaa koskevan unionin tuomioistuimen oikeuskäytännön ja siinä mainitun tehokkuusperiaatteen sekä perusoikeuskirjan 47 artiklan mukaista on, että hakijalla on mahdollisuus tehokkaasti vedota oikeuksiinsa tuomioistuimessa.
Nyt ratkaistavana olevassa asiassa hakija on valittanut hallinto-oikeuteen Maahanmuuttoviraston päätöksestä, jolla hänen kansainvälistä suojelua koskeva ensimmäinen hakemuksensa on hylätty. Tähän nähden hakijalla on ollut vastuunmäärittämisasetuksen 18 artiklan 2 kohdassa edellytetyllä tavalla mahdollisuus tehokkaaseen oikeussuojakeinoon tuomioistuimessa menettelydirektiivin 46 artiklan sekä perusoikeuskirjan 47 artiklan mukaisesti.