Rigorous scrutiny versus Marginal review

Samenvatting

This book explores what international and EU law require from the national asylum judge with regard to the required intensity of the judicial scrutiny to be applied, and with regard to evidentiary issues, such as the standard and burden of proof, the assessment of credibility, the required level of individualisation, the admission and evaluation of evidence, opportunities for presenting evidence and time limits for submitting evidence. To that end, an analysis is made of the provisions on national (judicial) proceedings contained in the Refugee Convention, the International Covenant on Civil and Political Rights, the UN Convention against Torture, the European Convention on Human Rights, the Charter of Fundamental Rights of the EU and a number of secondary EU law instruments, such as the EU ... Qualification Directive and the EU Asylum Procedures Directive, with a particular focus on issues of evidence and judicial scrutiny. In addition, the assessment as performed by the UN Human Rights Committee, the UN Committee against Torture and the European Court of Human Rights in cases concerning the expulsion of asylum seekers is analysed, again with a particular focus on issues of evidence and judicial scrutiny. This research has revealed that international and EU law contain many specific standards on the intensity of judicial scrutiny to be applied by national asylum courts, as well as standards on evidence. It has also revealed that it has become in fact impossible for national asylum courts to ignore or discard these standards, as that would amount to a breach of Articles 18, 19 and 47 of the EU Charter on fundamental rights and thus a violation of primary binding EU law. An important common denominator following from international and EU law is that national asylum courts must perform an independent, impartial and rigorous national judicial scrutiny of asylum refusals. Independent, impartial and rigorous national judicial scrutiny implies, inter alia, that national courts examine evidence submitted by applicants in a careful and serious manner. It also requires that national courts are able to make an independent and fresh determination of the disputed facts and that - if necessary in order to clarify the facts - these courts undertake judicial investigations.