Subsidiarity and 'Arguabitlity': The European Court of Human Rights' Case Law on Judicial Review in Asylum Cases

The European Court of Human Rights' case law on judicial review in asylum cases is not entirely consistent. However, it can be interpreted as consistent if two presumptions are accepted. First, that, as the Court's role should be subsidiary to that of domestic courts, domestic judicial rev...

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Bibliographic Details
Published in:International journal of refugee law 2009-03, Vol.21 (1), p.48-74
Main Author: Spijkerboer, Thomas
Format: Article
Language:English
Subjects:
Asylum
Courts
Europe
Human Rights
Online Access:Get full text
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Summary:The European Court of Human Rights' case law on judicial review in asylum cases is not entirely consistent. However, it can be interpreted as consistent if two presumptions are accepted. First, that, as the Court's role should be subsidiary to that of domestic courts, domestic judicial review should at least be of the same quality and substance as the European Court of Human Rights' review. Secondly, that the Court distinguishes between arguable and non-arguable cases not just in the context of Article 13 ECHR and of the admissibility of applications, but that this distinction is central to its entire case law about the asylum procedure. This analysis results in a coherent doctrine on deadlines for submitting evidence, the burden of proof, the intensity of judicial review, and suspensive effect. If the Court understands its case law in this way, it can prevent it from becoming, in some respects, a court of first instance. Adapted from the source document.
ISSN:0953-8186
DOI:10.1093/ijrl/een039