Termination of asylum application with inadequate reasoning and lack of evidence
Ljatifi v. “the former Yugoslav Republic of Macedonia” 17.05.2018 (no. 19017/16)
The case concerned a complaint brought by a Serbian national, who had been living in “the former Republic of Macedonia” from the age of eight, that she had been ordered to leave the country because she was a risk to national security and that she was thus under an imminent threat of forcible expulsion at any time.
The Court found that the domestic courts had failed to subject the executive’s assertion that the applicant posed a risk to national security to any meaningful scrutiny. In particular they had based their decision on a classified document which had never been available either to them or to the applicant. Even though the Government had provided a redacted version of the document in the proceedings before the Court, it was not sufficient to prove that the applicant had been a risk to national security. Nor has she ever had criminal proceedings brought against her for any offence.
Article 1 of Protocol 7
The applicant, Gjilizare Ljatifi, is a Serbian national who was born in 1991. Aged eight, she fled Kosovo with her family and settled in “the former Yugoslav Republic of Macedonia”. She has been living in the country ever since, and at present resides in Skopje.
In 2005 she was granted asylum and a residence permit. The permit was extended every year until 2014 when the Ministry of the Interior terminated her right to asylum, holding that she was a risk to national security.
Her challenges to this decision before the administrative courts were all unsuccessful. The courts, referring to a classified note obtained from the National Intelligence Agency, accepted that she was a risk to national security.
THE DECISION OF THE COURT
The Court observed that, even where national security was at stake, deportation measures should be subject to some form of adversarial proceedings before an independent authority or court.
However, in the judicial review of the applicant’s case, the Ministry’s assertion that she was “a risk to (national) security” had simply been accepted without any other factual details to support that allegation. The courts only added that the Ministry had reached their decision on the basis of a classified document obtained from the Intelligence Agency, which was not available during the proceedings before the Ministry or the courts. Ms Ljatifi had not therefore been able to present her case adequately in the judicial proceedings and the courts had had to limit themselves to a purely formal examination of the expulsion order. In any event, the courts did not explain why the classified document had to remain confidential or the extent of the review they had carried out. The courts had thus failed to subject the executive’s assertion that the applicant posed a risk to national security to any meaningful scrutiny.
Even though the Government had produced a redacted version of the classified document in the proceedings before the Court, the only fact that had emerged from that document had been Ms Ljatifi’s alleged knowledge of and support for other people’s involvement in multiple thefts and acts of concealment. No other details had been provided to support the allegation that she had represented a security risk. Indeed, no proceedings have ever been brought against her in the commission of any offence.
There had therefore been a violation of Article 1 of Protocol No. 7 to the Convention.
Given that finding, the Court considered that it was not necessary to examine the complaint under Article 13.
Just satisfaction (Article 41)
The Court held, unanimously, that “the former Yugoslav Republic of Macedonia” was to pay Ms Ljatifi 2,400 euros (EUR) in respect of non-pecuniary damage, and EUR 1,600 in respect of costs and expenses.
Judge Sicilianos expressed a concurring opinion, while Judge Eicke expressed a partially dissenting opinion. These opinions are annexed to the judgment(echrcaselaw.com editing).