CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ

RIGHT TO A FAIR TRIAL IN ASYLUM PROCEDURES

The Right to be Heard on his Asylum Motives Every asylum applicant should be heard in a personal interview. Exceptions to this rule are only allowed in exceptional cases. Minor asylum applicants should, in principle, be interviewed if they so wish and if their age and maturity permits. Only if an interview is not considered to be in the best interests of the child should an interview be omitted. If the applicant does not understand the language of the interview, a competent and qualified interpreter should be provided free of charge. The interviewer must be competent and properly trained to interview asylum applicants. Interviews should be conducted in a gender-sensitive manner. Minors should be heard in a child-friendly manner. Member States should at one stage of the administrative procedure hear the asylum applicant on its main conclusions regarding the fact-finding, credibility assessment and the assessment of the risk of refoulement, as well as important pieces of evidence on which these conclusions are based. An oral hearing should be held before the first instance court or tribunal reviewing the negative decision on the asylum claim, particularly if this court decides on the credibility of the applicant’s account and/or where the applicant’s personal experiences play an important role. The applicant must be able to hear and follow the proceedings before the court or tribunal and generally to participate effectively in them. 33 The Right to Remain on the Territory of the Member State during the Asylum Procedure 34 An asylum applicant should be allowed to remain on the territory of the Member State: a) until determining authority in first instance has carried out a close and rigorous assessment of the asylum claim; b) for the time necessary to avail himself of the effective remedy before a court or tribunal within the meaning of Article 39(1) of Directive 2005/85/EC and Article 46(1) of Directive 2013/32/EU; and c) during the course of the appeal proceedings, until rigorous scrutiny of the claim of a risk of refoulement has been performed by the court or tribunal. Automatic suspensive effect must be attached by law to either the appeal itself or to a request for interim relief. The Burden of Proof, Shift of Burden of Proof The standard of proof should not be set too high. The applicant may be expected to show that there is a ‘reasonable possibility’ of future persecution or that there are substantial grounds for believing that he faces a real risk of serious harm. In examining 33 RENEMAN, Marcelle. EU asylum procedures and the right to an effective remedy . Portland, Oregon: Hart Publishing, 2014. Modern studies in European law. ISBN 1849465452. 34 RENEMAN, Marcelle. EU asylum procedures and the right to an effective remedy . Portland, Oregon: Hart Publishing, 2014. Modern studies in European law ISBN 1849465452.

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