In Europe, the European Convention of Human Rights and its Court (ECtHR) as well as the community legal order with the European Court of Justice with exclusive jurisdiction to interpret community law, are of particular importance with regard to asylum procedures and the protection of the rights of asylum seekers in the context of those procedures. The role of the ECJ in the interpretation not only of the notion of effective remedy in the asylum context but in general of all notions and aspects of refugee law, has become all the more important since the Treaty of Amsterdam which brought asylum and immigration under the first pillar of the Community legal order and the subsequent secondary legislation on asylum adopted by the EU. In that respect, the ECJ is the only supra -national or international Court with jurisdiction, albeit in the limited context of the EU, to interpret not only community law on asylum but eventually the 1951 Geneva Convention on the status of Refugees upon which according to the European Community Treaty, the asylum acquis is based.
The right to an effective remedy is protected under Article 13 of the European Convention of Human Rights. This has been interpreted by the European Court of Human Rights in a number of cases related in particular to violations of Article 3 of the Convention which prohibits torture, inhuman and degrading treatment. The Court has repeatedly ruled that to comply with Article 13 of the Convention, a remedy, particularly in article 3 cases, should ensure an independent and rigorous scrutiny of a claim, that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of deportation measures.
Moreover, the effect of Article 13 requires the provision of a domestic remedy to deal with the substance of a complaint under the Convention, which is effective in practice and in law, and is able to grant appropriate relief. Even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (Jabari v. Turkey, Hilal v. UK and Conka v. Belgium)
The above case law of the Court is also directly relevant to community law as according to the Treaty of the EU as well as the case law of the ECJ, human rights protection forms part of the general principles of community law and inspiration should be drawn from, amongst other instruments, the Convention and of course the case law of the ECtHR. Moreover, the right to an effective remedy is a stand alone community law right in the Charter of Fundamental Rights of the EU, which in article 47 provides for the right to effective remedy before a court for any person whose rights under community law have been violated. It is important to note that the Charter protects the right of asylum as such as a community law right. The right to an effective remedy includes in accordance with the Charter also the right to legal aid in order to secure effective access to justice. Of course the legally binding nature of the Charter will only be effected with the entry into force of the Lisbon Treaty, but its importance and relevance are already obvious as the ECJ has already taken into account the Charter in a number of its decisions.
The right to an effective remedy, has also been recognised by settled case law of the ECJ in various judgements (See 222/84 Johnston 222/86 UNCTEF v. Heylens, C-120/97 Upjohn Ltd v. The Licensing Authority established by the Medicines Act 1968 and Others) the most significant of which with regard to deportation of third country nationals was the case of Dörr και Ünal (C-136/03, Dörr και Ünal). In that case the Court held that for a remedy to be effective under community law it should enjoy automatic suspensive effect and should ensure judicial review of the substance of the case. So the additional element brought in by the ECJ in the notion of effective remedy is that there always has to be a judicial review of the decision (the ECtHR case law does not necessarily obliges for a judicial review as long as the authority to review the decision is independent and impartial ).
For an EU member state, such as Cyprus, therefore, for a remedy in asylum cases to qualify as effective in accordance with the obligations deriving from the Convention and community law, the following requirements have to be fulfilled: Firstly, a judicial review of a negative decision at some point in the procedure must always be available. Secondly, the aggregated remedies available must ensure that both the legality and the substance of the case are reviewed, and thirdly the available remedy must entail automatic suspensive effect.
Cyprus has a two tier refugee determination procedures. The Asylum Service examines the case on first instance and the Refugee Reviewing Authority on second instance. Both decisions are considered to be administrative decisions which may be challenged exclusively before the Supreme Court of Cyprus as the sole administrative court, in accordance with a general right to challenge the decisions of the administration provided by Article 146 of the Constitution. An asylum seeker however, in accordance with the Refugee Law retains this status and is protected from refoulement only as long as his case is pending before the Refugee Reviewing Authority and until a final decision by that authority is reached. In essence therefore, an asylum seeker may have the right to challenge the decision of the Refugee Reviewing Authority or if he/she chooses the decision of the Asylum Service before the Supreme Court, without having at the same time the correlated right to remain in the country to see his/her case adjudicated.
As a consequence, irrespective of Court procedures pending with regard to a negative decision of the asylum authorities, detention and deportation orders may by issued by the immigration officer at any time. These may be challenged with a separate recourse before the Supreme Court. In fact an asylum seeker exercising his right to judicial review against whom detention and deportation orders have been issued, has to file two separate applications before the Supreme Court in order to secure a review on his asylum claim and to be protected from refoulement; one against the decision on the asylum claim and one against the decision for deportation, that will run and examined in parallel by the same Court. No legal aid is provided for the time being for cases like this.
The general characteristics of the above two tier system in asylum cases may be summarised as follows:
- The Refugee Reviewing Authority, is supposed to review both the legality and the substance of the claim. There is an obligation to take into account new evidence, but no clearly expressed obligation to proceed with new research on the case, with regard in particular to country of origin information. In fact, the Supreme Court in full bench accepted that there is no obligation from the reviewing authority to initiate a new research on the case, but that it can base its decision on the information in the file of the Asylum Service.
- There is no obligation to challenge the decision of the Asylum Service first to the Refugee Reviewing Authority and then to the Supreme Court. An applicant may challenge the decision of the Asylum Service directly before the Supreme Court avoiding for example further delays by the Refugee Reviewing Authority. In such cases, the asylum seeker is not protected from refoulement as he/she has no longer the status of the asylum seeker. Moreover the application shall not receive a re-examination of the substance of the case, because thirdly
- The Supreme Court reviews only the legality of the decisions of either the Asylum Service or the Refugee Reviewing Authority and not the merits of the case. In the context of reviewing the legality it examines whether the decision was flawed in fact or in law, but in a very superficial manner, particularly in asylum cases. It cannot take into account new evidence as it does not examine the merits and is obliged to review the case on the basis of the evidence taken into account by the decision making authority.
- Finally, recourse to the Supreme Court does not entail automatic suspensive effect. Suspension of the decision may be only granted if an intermediate (ex parte) application is made which can only succeed if the applicant proves that the decision suffers from blatant illegality and he/she will suffer irreparable harm. In practice it is very rare that the Supreme Court grants such orders, either in asylum cases or in general deportation of migrants. It has to be noted however that in the majority of the cases of asylum seekers the immigration officer suspends deportation ab initio until the outcome of the case, but does not suspend at the same time detention, resulting in long and more often than not illegal, within the meaning of Article 5 of the European Convention on Human Rights, detention of rejected asylum seekers.
It is submitted that the above system of remedies is not in line with the notion of effective remedy as this has been interpreted by ECtHR and the ECJ for the following reasons: In the case an asylum seeker chooses to challenge the decision of the Asylum Service directly before the Supreme Court, then that decision will not be reviewed with regard to substance. Moreover, such a recourse before the Supreme Court does not entail automatic suspensive effect, therefore, in accordance with the Refugee Law, the applicant is no longer an asylum seeker and as a consequence he/she is considered as an “illegal immigrant” against whom deportation orders may be issued. Challenging deportation orders before the Supreme Court is a remedy that entails all the above weaknesses as well.
Even if the two tier system is followed by an asylum seeker, with the submission of an appeal before the Refugee Reviewing Authority, before utilizing Court procedures, although in theory the case may be reexamined in substance, the subsequent recourse to the Supreme Court against a negative decision does not entail automatic suspensive effect.
Cyprus urgently needs to review the remedies currently available in asylum cases in the light of its international and EU obligations. The obligation of member states to afford to asylum seekers an effective remedy to challenge negative decisions of the asylum authorities is also clearly provided in the asylum procedures Directive 2005/85/EC. Many member states’ remedies comply already with this obligation whereas other have adjusted their systems in conformity with their obligations. Some member states have established special asylum and immigration courts reviewing asylum cases with regard to both the legality and the substance of the case. These remedies normally entail also automatic suspensive effect. Other member states of the EU have a similar to Cyprus two tier system, but with quasi judicial bodies acting as second instance reviewing bodies and with the possibility of subsequently bringing forward also court procedures. The competent authorities and basically the Ministry of Interior have currently a great opportunity in front of them to evaluate the current system and rethink on how this should be adjusted or rebuilt from the scratch so as to provide an effective remedy in asylum cases. Only today the House of Parliament continued the discussion of the bill tabled by the Government for harmonization with the asylum procedures Directive. The issue of effective remedies is one of the major issues still to be decided by the Parliament. Leaving aside however, the review of the substance of the case as well as the suspensive effect of the remedies in question, the system in itself is quite complicated as parallel judicial procedures have to be initiated by asylum seekers in order to secure if possible non refoulement, review of the decision on the asylum claim as well as securing the right to stay pending judicial procedures. This is practically and realistically almost impossible for asylum seekers without any legal aid. The legal aid law does not cover administrative procedures at all, although this is in the process to be reviewed to be harmonized with the procedures Directive which provides for legal aid, albeit with many possibilities for exceptions.
29 June 2009
KISA Steering Committee