The main proceedings concern a Serbian national who applied for asylum in Sweden on 12 March 2017. In 2003, the applicant reported a militia group to the police resulting in legal proceedings against several members of the group and, for that reason, was the victim of violent threats. He was put in a witness protection programme and lived in several places in Serbia (including in prison) until he decided to renounce the status of witness protection and to hide in his original place of residence. Since then, he received several threats by telephone and left the country fearing persecution by the militia. The Swedish Migration Agency rejected the applicant’s request for asylum and ordered his return, including a two-year entry ban.
The asylum application was considered manifestly unfounded on grounds that Serbian authorities could, in principle, provide the applicant with effective protection. The applicant appealed against the decision to the Administrative Court for Immigration Matters, Malmö, arguing that the protection he was previously granted was ineffective (due to threats by Serbian authorities and the widespread corruption in that country) and inhumane (because he was forced to live in isolation for years).
The Administrative Court of Malmo subsequently referred the following question to the CJEU for a preliminary ruling, regarding the reliability of country of origin information about state protection for ruling out an asylum application as manifestly unfounded:
- Is an application in which the applicant’s information is deemed to be reliable and so is taken as the basis for the assessment, but insufficient to form the basis of a need for international protection on the ground that the country-of-origin information suggests that there is acceptable protection, to be regarded as clearly unfounded under Article 31(8) of the recast Asylum Procedure Directive?
As a preliminary remark, the Court notes that there is no legislation or regulatory provision in Swedish law in respect of countries of origin within the meaning of the Asylum Procedures Directive 2013 (APD). Notwithstanding the absence of legislation in this respect, the Migration Agency rejected the applicant’s asylum application as manifestly unfounded under national legislation transposing the APD on grounds that Serbia provided effective protection for him and that he had not established that Serbia does not offer adequate protection for him from the threats he faces in the country. According to the Court, the decision taken by the Migration Agency was based on reasoning similar to Articles 36 and 37 of the APD relating to the safe country of origin concept which, where applied by a Member State who has provided for the concept in its domestic legislation, to subsequently reject the application as manifestly unfounded in accordance with Article 31(8)(b) and 32(2) of the APD. If a State rejects the application on this basis an applicant’s appeal against such a rejection may not have suspensive effect (as per Article 46(5) and (6) of the APD).
The Court, therefore, notes that the above decision of a Member State relies on the State designating safe countries of origin in accordance with the procedure laid down in Articles 36 and Annex I to the APD, namely the adoption of a list of third countries, the enactment of additional implementation rules and notification to the Commission of the list or its periodic review. Sweden had, conversely, not fulfilled any of these requirements. According to the Court, then, a Member State cannot rely on the rebuttable presumption under the APD in respect of the safe country of origin concept without having fully implemented those rules.
In addition, uncertainties from the referring court as to whether insufficient statements from the applicant could lead to the application being determined as manifestly unfounded, the Court held that unlike the 2005 APD the 2013 APD no longer refers to insufficient representations under Article 31(8)(e). Thus a Member State may not consider an application for asylum as manifestly unfounded due to the insufficiency of the applicant’s representations.
Article 31(8)(b) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 32(2) of that directive, must be interpreted as not allowing an application for international protection to be regarded as manifestly unfounded in a situation, such as that at issue in the main proceedings, in which, first, it is apparent from the information on the applicant’s country of origin that acceptable protection can be ensured for him in that country and, secondly, the applicant has provided insufficient information to justify the grant of international protection, where the Member State in which the application was lodged has not adopted rules implementing the concept of safe country of origin.
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