Application for international protection must be registered even pending criminal investigation
Directive 2013/32/EU establishing minimum standards on procedures for granting and withdrawing refugee status is applicable to all asylum seekers, even those who were detained by the court pending criminal investigation. People in need of international protection must be ensured access to legally safe and efficient asylum procedures.
The Directive underlines explicitly that Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged (Article 6).
As noted by the Court of Justice of the European Union in case C-72/22 (para 57-62), it is clear from Article 6(1), (3) and (4) of Directive 2013/32 that the act of ‘making’ an application for international protection entails no administrative formalities, such formalities having to be observed when the application is ‘lodged’. That latter act, in principle, requires the applicant for international protection to complete a form provided for that purpose in accordance with Article 6(4) of that directive (see, to that effect, judgment in C‑36/20, paragraph 93).
As regards specifically the act of ‘making’ an application for international protection, it should be clearly stated that Article 7(1) of Directive 2013/32 provides that any adult with legal capacity has the right to make an application for international protection on his or her own behalf. Moreover, it is clear from the Court’s case-law that any third-country national or stateless person has the right to make an application for international protection on the territory of a Member State, including at its borders or in its transit zones, even if he or she is staying illegally in that Member State. That right must be recognised, irrespective of the prospects of success of such an application (judgment in C‑821/19, paragraph 136).
Moreover, Article 6(2) of Directive 2013/32 lays down the obligation for Member States to ensure that any person who has made an application for international protection has an effective opportunity to lodge it as soon as possible (see, to that effect, judgment in C‑36/20, paragraph 63). Thus the right to make such an application ultimately is a condition of the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, C‑808/18, paragraph 102). While the making and the lodging of an application for international protection are two separate, successive steps (see, to that effect, C‑36/20, paragraph 93), there is nevertheless a close connection between those acts, inasmuch as they are meant to ensure effective access to the procedure in which applications for international protection are examined and to ensure the effectiveness of Article 18 of the Charter.
Once the application is made the applicant‘s procedural rights to legal assistance, interpreter, right to remain in the Member State pending the examination of the application among others must be ensured.
Two recent reports of the Seimas Ombudsperson 4D-2023/1-983 and 4D-2023/1-946 observe violation by the Migration Department of the right of the foreigners detained for illegal border crossing and later informally returned to Latvia to apply for international protection.
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