Asylum Proceedings in the Czech Republic During the Migration Crisis

Petr Černý

doi:10.2478/jles-2020-0003

Abstract

Abstract The article deals with the fundamental problems that emerged on the territory of the Czech Republic during the implementation of the asylum procedure throughout the migration crisis in the years 2015 to 2019. Problematic issues related primarily to the detention of migrant asylum seekers were identified by studying the key decisions of national and international courts. The first problematic point was the amendment to the Asylum Act, which required the courts to discontinue proceedings on the review of detention orders after the foreign national was released from detention. Due to the conflict with EU law and the impossibility to claim damages for unlawful detention, this amendment was finally annulled by the Constitutional Court. The second problem was that the factual conditions for asylum seekers in the EU Member State where the asylum seeker was to be transferred for the purpose of processing his/her asylum application, were not examined. In this regard, the situation had since been rectified and the administrative authorities and courts of the Czech Republic already take this aspect into account when deciding whether an asylum seeker detained on the territory of the Czech Republic is to be transferred to the country where he/she applied for asylum. The most serious problem is so far incomplete transposition of the Procedures Directive, in particular Article 46 of the Procedures Directive, which requires from the court to review the decisions on asylum in full jurisdiction and could possibly grant asylum itself. However, this requirement does not correspond to the concept and system of administrative courts in the Czech Republic and would require a significant and costly change. The last issue identified was the poor implementation of the Dublin III Regulation, involving not setting serious risk of absconding of an asylum seeker as a precondition for his/her detention directly in the law.

Highlights

Since 2015 the migration crisis, known as the refugee crisis, has brought many new challenges for asylum law
Attention is paid to the problematic aspects of the functioning of the asylum procedure, which have emerged in recent years in the Czech Republic as one of the EU Member States
The most serious problem in meeting the requirements of EU law has been full and ex nunc review of decisions on asylum applications, which do not fit into the concept of the Czech administrative justice and causes a number of practical problems, as the legislation is not adapted to these requirements at all

Summary

Introduction

Since 2015 the migration crisis, known as the refugee crisis, has brought many new challenges for asylum law. The oldest international regulation on asylum granting in the EU is the Convention relating to the Status of Refugees of 28 July 1951, as amended by the Protocol of 31 July 1967 (the Geneva Convention) [1]. From recent national regulation cases, Italy is introducing new highly questionable legislative measures in an effort to cope with the inflow of migrants These measures are on one hand motivated by legitimate reasons and on the other, they reduce the existing standard of asylum seekers’ rights [9]

Methodology and subject of research

Discontinue of proceedings of asylum seekers in transit

Transfer of the asylum seeker to the member state

The problem of transposition of procedures directive

Detention of a foreign citizen due to the serious risk of absconding

Conclusions