Expulsion Definition Of Manifestly Unfounded As Related To Directive 2008/115/EC Background (2014)
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There are cases where the Norwegian Immigration Appeals Board (UNE) experiences that it is difficult to determine whether a given application is "manifestly unfounded" or not. In this context, UNE wanted to clarify how other countries, who have a similar exclusion provision, interpret and apply this term. Our AHQ asked these questions:
1. "Is the wording 'manifestly unfounded' used in the national legislation in your country?"
2. "Has your national legislation, as a result of the Directive, implemented an expulsion rule which authorizes the expulsion of a person who has filed a 'manifestly unfounded' application?"
A number of MS report that though the concept of “manifestly unfounded” exists and is actively used in a legal context, its actual interpretation in many cases is left to the discretion of the judicial and administrative authorities. The vast majority of responding MS use this concept solely in reference to decisions on applications for international protection. In addition to Norway, only Sweden, the UK and SK have a strict practice in terms of expelling anyone based on the grounds of a manifestly unfounded application (the UK does not actually call it expulsion and Sweden calls it refusal of entry). In a number of MS expulsion only applies when there is a threat to national security.
Analysing the MS reports on the concept of “manifestly unfounded”, we find some common threads of thought. Basically there are three lines of logic, the single most common one is that the authorities are in absolutely no doubt that the application, or in some cases, the appeal, will result in a negative decision; another line of logic is that the applicant has not proven the case for well-founded fear of persecution. The third line of logic is that the application is based on outright fraud/fraudulent information and/or clearly is abusing the asylum procedure; false identification and/or implausible explanations fall into this category for some MS. All of these reasons either alone or together are viewed in conclusion as not meeting the criteria for granting international protection.
Only Norway, the UK, and SK directly addressed the question related it to standard of proof in terms of expulsion based on a manifestly unfounded application. The SK reports “In relation to lodging an application for a residence permit, it is possible to expel a person who provided false, incomplete or misleading data or presented falsified or counterfeited documents or a document of another person during the proceedings.” While, if the applicant has used false identity in Sweden, it is generally not sufficient grounds to consider the application as manifestly unfounded. However, if the applicant solely alleges economic problems or unemployment as the basis of their application, the application can be considered as manifestly unfounded. Also, if the applicant comes from any country where it is obvious that there is no persecution or treatment contrary to human rights, the application can be considered as manifestly unfounded. When it comes to dealing with false information, in Sweden, it is required that a person gives blatantly false information on all relevant circumstances to be considered manifestly unfounded. While the UK only uses the term in relation to appeals, a claim is rejected and certified not because blatantly false information is provided, or because it lacks credibility, but because the claim, even if accepted as true and taken at its highest, could not succeed.
Most of the MS indicated that there is no separate legal regime for the expulsion of an illegally staying third country national who has filed a manifestly unfounded application for refugee status. Applicants are generally obliged to leave the territory without delay when an application for a legal stay or for a residence permit has been rejected as manifestly unfounded. However, expulsion usually only applies in cases where the concerned person poses a risk to public policy, public security or national security.