Recently established case-law on asylum and immigration in Latvia
1.1. Content of Protection
A legal regulation of matters
concerning the field of asylum in Latvia was first passed in 1997. In
March 2002 the Parliament of Latvia passed a new law – Asylum Act –
which slightly changed the situation in the field of asylum.
Any
person who came to the Republic of Latvia and made an application for
the refugee status, is declared asylum seeker, and while the application
was examined the asylum seeker can use some particular rights and
freedoms, for example, provision with a place to stay in Latvia, a
possibility to use an interpreter, to contact a lawyer, to receive
primary medical treatment. An asylum seeker is obliged to collaborate
with Latvian authorities in the process of collecting information.
An
additional status for a group of people was added by the Act of 2002 –
an alternative status. This status can be assigned to a person whose
conditions are not adequate to the refugee status if such person in
his/her country of origin has a threat of death penalty, corporal
punishment, torture, inhuman or humiliating attitude or humiliating
punishment, or if he/she cannot return to his/her homeland because of
military conflicts.
A person, who has been granted an
alternative status, is provided with an identity document and a personal
traveling document if he/she has no other valid identity and traveling
document, and a residence permit in Latvia for the term not exceeding
four years. Such a person can also receive financial support for the
first 9 months. Both a person who has been granted a refugee status and a
person who has been granted an alternative status are entitled for the
family unification with his/her spouse and minor children.
The
person with the refugee status has economical, social, personal and
other rights and freedoms as well as responsibilities provided by the
Chapter 8 “On Human Basic Rights” of the Constitution of Latvia.
Additionally to the aforementioned rights, the refugee may freely leave
and enter Latvia, and invite his family members residing in foreign
countries.
Generally, the Asylum Act corresponds to the requirements of international regulation in asylum field.
1.2. First instance procedure
A
decision to grant any of the above mentioned statuses is taken by the
Refugee Affairs Department, which is a unit of the Office of Citizenship
and Migration Affairs.
The Department shall take a decision to
grant or to refuse granting of refugee or alternative status after
conducting an interview (hearing) with the asylum seeker.
In
examining an application, the Department shall first decide on the
refugee status in conformity with the provisions of the Asylum Act. If
the factual circumstances of a given case do not meet the requirements
of refugee status, the Department shall take a decision on the
alternative status in accordance with the procedures prescribed by
Asylum Act.
The Department shall draw up in writing the decision on
the granting or refusal to grant refugee or alternative status,
providing an expanded justification and specifying the procedures for
appeal. The asylum seeker shall be acquainted without delay with the
contents of the decision by explaining, in a language the asylum seeker
understands, the substance of the decision and the procedures of appeal.
1.3. Right to appeal against administrative decision
Until
the December 2006 the decision concerning the application for a refugee
status could be challenged and revised by the Refugee Appeal Council,
the decision of which was final. The Refugee Appeal Council was the
institution under the supervision of the Ministry of Justice. Decisions
of Refugee Appeal Council were final and not subject to appeal (there
were few exceptions).
The Refugee Appeal Council consisted of a
Chairperson and four Board members. The Chairperson of the council was
appointed to and released from office by the Government upon a
recommendation of the Minister for Justice, but the council members were
appointed upon a recommendation of the Chairperson of the council. Thus
a question of the independence of the council was raised in context of a
right to access to court.
By the amendments to the Asylum Act in
July 2006, which came into force in December 2006, the regulation was
changed so that an appeal against a decision of the Refugee Affairs
Department on granting or refusal to grant refugee or alternative status
may be submitted to the Administrative Court within a period of seven
days by the asylum seeker. The decision of the court is final except in
cases, where it is established that a refugee lied and obtained a
protection under false information that he/she provided to the
authority; in that case his/her status has to be terminated. Such
person, or his/her authorized representative, may file an appeal against
judgment of the Administrative Court to the Administrative Court of
Appeal.
Because of the above-mentioned amendments, until today
only five asylum cases have been adjudicated by the Administrative
Regional Court in Latvia.
The all applicants were inhabitants of the
states of the former Soviet Union – Kyrgyzstan, Kazakhstan, Ukraine and
Russia. All appeals were rejected by one of the following reasons:
the
asylum seeker before arriving in Latvia resided in the country, where
there are no threats of death penalty, corporal punishment inhuman or
humiliating attitude to the asylum seeker and he/she could ask for a
protection and receive a protection there – 1 case.
the asylum seeker
without a well-founded explanation submitted the application, to
prevent the upcoming expulsion, even if he/she had the opportunity to
submit an application before – 2 cases;
the application is
manifestly ill-founded or it obviously lacks credibility, the story of
the asylum seeker is conflicting, inconsistent or implausible by itself
– 2 cases.
Accordingly to the Asylum Act in these cases the
judgments of Administrative Regional Court were final. In that way,
Administrative Court of Appeal did not deal with asylum cases yet.
Considering
these Administrative Regional Court’s judgments, it can be concluded
that the main preoccupy of the court was to adjudicate on the questions
of facts.
2. IMMIGRATION
The main national
legislative source in the field of immigration is Immigration Act. This
act was adopted in 2002 and it replaced the previous act on immigration
that obviously did not correspond to requirements of European Union
regulation in this field.
The entry and residence of aliens in the
Republic of Latvia shall be documented and controlled by the Office of
Citizenship and Migration Affairs (hereinafter referred to as the
Office), State Border Guard, diplomatic and consular representations of
the Republic of Latvia and the Consular Department of the Ministry of
Foreign Affairs in accordance with their competence.
2.1. Right to appeal against administrative decision
In
accordance to the Immigration Act an alien has the right to dispute a
decision of the representation office of the State Border Guard
regarding the refusal to enter the Republic of Latvia within 30 days
after receiving such decision. The submission shall be examined by the
head of State Border Guard or an official authorized by him or her, and
the decision taken by such persons shall not be subject to appeal.
A
decision on the refusal to issue a residence permit to an alien or
cancellation thereof may be disputed by the a person who submitted an
invitation to the Office of Citizenship and Migration Affairs to the
Head of the Office within a period of 30 days after the receipt of such
decision. An invitation is a document by which a person undertakes the
obligations specified in this regulation in relation to the alien who
he/she invites to reside in the Republic of Latvia (with a visa). An
alien who legally resides in the Republic of Latvia or the person who
invites him/her have the right in accordance with procedures prescribed
by law to appeal to a court the decision taken by the Head of the Office
regarding the refusal to issue a residence permit.
An alien to
whom an expulsion order has been issued has the right to dispute it to
the Head of the Office within a period of seven days. The Head of the
Office shall extend the residence period of an alien for the time period
of the examination of the submission.
The above mentioned individuals have a right to appeal against decision taken by the Head of the Office before the court.
Submission
of an appeal to the court shall not give rights to an alien who has
been issued an expulsion order to reside in the Republic of Latvia.
The
decision regarding the forcible expulsion of an alien in the case when
an alien has illegally crossed the State border of the Republic of
Latvia or otherwise violated procedures prescribed by regulatory
enactments for the entry and residence of aliens in the border area of
the Republic of Latvia shall not be disputable or subject to appeal.
If
the circumstances have changed, the Head of the Office has the right to
revoke a decision regarding the forcible expulsion of an alien.
Other
administrative decisions issued by the Office which have no special
order to appeal may be appealed to the Administrative Court. Then,
accordingly to the Administrative Procedure Act case may be revised in
three levels.
In addition, for now, there is one Regional
Administrative Court, one Administrative Court of Appeal and the
Administrative Department of High Court in Latvia. Administrative courts
came into operation in April 2004. Before that, all administrative
cases in Latvia were revised by civil courts.
2.2. Difficulties dealing with immigration cases
Up until now, immigration disputes raised no serious problematic
issues before the administrative courts. Generally, legal disputes are
resolved by Administrative Court of Appeal or by the High Court and they
are related mostly to the interpretation of the material law.
However,
the protection of privacy and family provokes important legal
questions, since decision to refuse a refugee status or alternative
status and immigration law decisions have to take into account Article 8
of the Convention for the Protection of Human Rights and Fundamental
Freedoms. Judges in those cases have to ascertain whether a restriction
of person’s privacy and immunity of family-life, based on the
prohibition to reside in the country, is considered to be proportional,
corresponding and necessary in the sense of the Article 116 of the
Constitution of Latvia in relation to the Article 8 of the Convention
for the Protection of Human rights and Fundamental Freedoms (hereinafter
referred to as the Convention):
According to the jurisprudence of the European Court of Human Rights the national court, which deal with the immigration case:
has to examine if a person has established and developed a family life in the context of Article 8 of the Convention;
has to examine if the decision, which is appealed by the plaintiff interferes with his/her rights to family life;
has to examine if the interference is prescribed by law and if it is proportional;
if
the family life or interference does not exist, or, if it is stated
that the interference is acceptable and proportional, the court has to
examine, if there is privacy and disturbance, and, consequently, if the
disturbance of privacy was justifiable, justified, adequate and
proportional.
Wherewith the national courts have to take in a
matter and to clarify the content and the margins of the above mentioned
questions as well as to interpret the law in conformity to
international acts of human rights (generally – the Convention),
principles and the decisions of the European Court of Human Rights.
In
the face of cases at the European Court of Human Rights against Latvia,
these are the issues that make difficulties to interpret and to
implement above mentioned points in the Latvian courts.
Taking into
account the fact that the terms of privacy and its immunity are quite
poorly analyzed in the decisions of the national courts of Latvia, the
jurisprudence on this matter is at the initial stage.
However,
the most recent issue concerning implementation of immigration law was
raised by the High Court in a procedure before the Constitutional Court.
The difficulty was based on the provision of Immigration Act which
enacts an obligation to the Office of Citizenship and Migration Affairs
(the Department) to make its obligatory decision in separate cases.
The
Administrative department of the High court submitted this issue to the
Constitutional Court claiming contradiction of certain part of the
Article 34 of the Immigration Act with Articles 96. and 110. of the
Constitution.
The Article 34 of the Immigration Act says that “the
issue of a residence permit shall be refused if”/.../ (one of the
provisions of this article is fulfilled).
The Administrative
department of the High court pointed that there is a doubt if the
Article 34. in that wording corresponds to the Articles 96 and 110 of
the Constitution which guarantee everyone’s right to immunity of
privacy, inhabitation and correspondence as well as state protection of
marriage and family. The Article 34 provides that the Department is
obliged to refuse an applicant's request, if one of the provisions of
this article is fulfilled despite the reasons of the request in person’s
application. In this way the discretion of the Department and the court
is excluded by implementing this article, and, it excludes the
Department’s and the court’s possibility to search a balance between the
restriction of one’s privacy and family life with the protection of
public order.
The relevant legal question of this case was,
whether the state administration should issue an obligatory (only one
content) administrative act even if it is not proportional to the
restrictions of the human basic rights caused by this act.
The
Constitutional Court noted that the answer to the above question depends
on considerations that authority has to perform, arriving at a decision
to issue administrative act and setting its content. The Administrative
Procedure Act distinguishes between obligatory administrative act (the
administrative act of only one possible content and result determined by
the material law), and three kinds of alternative administrative acts.
The
authority shall issue the obligatory administrative act, if the applied
regulation prescribes that only certain content of administrative act
shall be issued. In this case the act of the authority is strictly ruled
by the law and the authority can not decide on its own, how to
implement or even whether to implement the certain provision.
Where
the law prescribes to issue an obligatory administrative act, this
prevents the authority to consider the usefulness of administrative act
and its content.
Though the balance of legal effect has to be
considered in all cases, the principle of proportionality has to be
implemented in every case when person’s fundamental human rights are
restricted by the state, no matter whether there is a discretion
provided to the state authority in the national law or not.
The
challenged regulation of the Immigration Act does not provide the right
to do consideration of usefulness however it does not relieve the state
administration of its responsibility to follow the principle of
proportionality.
The objective of an obligatory administrative act
is to secure equality of decision making in all typical legal occasions
stated in the law. In the case of the atypical occasion the state
authority has the right to step back from the responsibility to fulfill
the effect prescribed in the regulation. However such digression has to
be based on solid arguments. One of such occasion might be the
application of the principle of proportionality when the person’s basic
human rights are restricted by the obligatory administrative act.
The
Constitutional court dismissed the case at this time by pointing out
that there is no reason to challenge regulation of the Immigration Act,
because the disputed issue is only the matter of the interpretation of
law.