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WG Asylum-Immigration > Meetings > Ljubljana, 28-29 June 2007 > Recently established case-law on asylum and immigration in Latvia

Recently established case-law on asylum and immigration in Latvia

1.1. Content of Protection

A legal regulation of matters concerning the field of asylum in Latvia was first passed in 1997. In March 2002 the Parliament of Latvia passed a new law – Asylum Act – which slightly changed the situation in the field of asylum.
Any person who came to the Republic of Latvia and made an application for the refugee status, is declared asylum seeker, and while the application was examined the asylum seeker can use some particular rights and freedoms, for example, provision with a place to stay in Latvia, a possibility to use an interpreter, to contact a lawyer, to receive primary medical treatment. An asylum seeker is obliged to collaborate with Latvian authorities in the process of collecting information.

An additional status for a group of people was added by the Act of 2002 – an alternative status. This status can be assigned to a person whose conditions are not adequate to the refugee status if such person in his/her country of origin has a threat of death penalty, corporal punishment, torture, inhuman or humiliating attitude or humiliating punishment, or if he/she cannot return to his/her homeland because of military conflicts.

A person, who has been granted an alternative status, is provided with an identity document and a personal traveling document if he/she has no other valid identity and traveling document, and a residence permit in Latvia for the term not exceeding four years. Such a person can also receive financial support for the first 9 months. Both a person who has been granted a refugee status and a person who has been granted an alternative status are entitled for the family unification with his/her spouse and minor children.

The person with the refugee status has economical, social, personal and other rights and freedoms as well as responsibilities provided by the Chapter 8 “On Human Basic Rights” of the Constitution of Latvia. Additionally to the aforementioned rights, the refugee may freely leave and enter Latvia, and invite his family members residing in foreign countries.
Generally, the Asylum Act corresponds to the requirements of international regulation in asylum field.

1.2. First instance procedure

A decision to grant any of the above mentioned statuses is taken by the Refugee Affairs Department, which is a unit of the Office of Citizenship and Migration Affairs.

The Department shall take a decision to grant or to refuse granting of refugee or alternative status after conducting an interview (hearing) with the asylum seeker.

In examining an application, the Department shall first decide on the refugee status in conformity with the provisions of the Asylum Act. If the factual circumstances of a given case do not meet the requirements of refugee status, the Department shall take a decision on the alternative status in accordance with the procedures prescribed by Asylum Act.
The Department shall draw up in writing the decision on the granting or refusal to grant refugee or alternative status, providing an expanded justification and specifying the procedures for appeal. The asylum seeker shall be acquainted without delay with the contents of the decision by explaining, in a language the asylum seeker understands, the substance of the decision and the procedures of appeal.

1.3. Right to appeal against administrative decision

Until the December 2006 the decision concerning the application for a refugee status could be challenged and revised by the Refugee Appeal Council, the decision of which was final. The Refugee Appeal Council was the institution under the supervision of the Ministry of Justice. Decisions of Refugee Appeal Council were final and not subject to appeal (there were few exceptions).
The Refugee Appeal Council consisted of a Chairperson and four Board members. The Chairperson of the council was appointed to and released from office by the Government upon a recommendation of the Minister for Justice, but the council members were appointed upon a recommendation of the Chairperson of the council. Thus a question of the independence of the council was raised in context of a right to access to court.
By the amendments to the Asylum Act in July 2006, which came into force in December 2006, the regulation was changed so that an appeal against a decision of the Refugee Affairs Department on granting or refusal to grant refugee or alternative status may be submitted to the Administrative Court within a period of seven days by the asylum seeker. The decision of the court is final except in cases, where it is established that a refugee lied and obtained a protection under false information that he/she provided to the authority; in that case his/her status has to be terminated. Such person, or his/her authorized representative, may file an appeal against judgment of the Administrative Court to the Administrative Court of Appeal.

Because of the above-mentioned amendments, until today only five asylum cases have been adjudicated by the Administrative Regional Court in Latvia.
The all applicants were inhabitants of the states of the former Soviet Union – Kyrgyzstan, Kazakhstan, Ukraine and Russia. All appeals were rejected by one of the following reasons:
the asylum seeker before arriving in Latvia resided in the country, where there are no threats of death penalty, corporal punishment inhuman or humiliating attitude to the asylum seeker and he/she could ask for a protection and receive a protection there – 1 case.
the asylum seeker without a well-founded explanation submitted the application, to prevent the upcoming expulsion, even if he/she had the opportunity to submit an application before – 2 cases;
the application is manifestly ill-founded or it obviously lacks  credibility, the story of the asylum seeker is conflicting, inconsistent or  implausible by itself – 2 cases.
Accordingly to the Asylum Act in these cases the judgments of Administrative Regional Court were final. In that way, Administrative Court of Appeal did not deal with asylum cases yet.
Considering these Administrative Regional Court’s judgments, it can be concluded that the main preoccupy of the court was to adjudicate on the questions of facts.


    The main national legislative source in the field of immigration is Immigration Act. This act was adopted in 2002 and it replaced the previous act on immigration that obviously did not correspond to requirements of European Union regulation in this field.
The entry and residence of aliens in the Republic of Latvia shall be documented and controlled by the Office of Citizenship and Migration Affairs (hereinafter referred to as the Office), State Border Guard, diplomatic and consular representations of the Republic of Latvia and the Consular Department of the Ministry of Foreign Affairs in accordance with their competence.    

2.1. Right to appeal against administrative decision

In accordance to the Immigration Act an alien has the right to dispute a decision of the representation office of the State Border Guard regarding the refusal to enter the Republic of Latvia within 30 days after receiving such decision. The submission shall be examined by the head of State Border Guard or an official authorized by him or her, and the decision taken by such persons shall not be subject to appeal.

A decision on the refusal to issue a residence permit to an alien or cancellation thereof may be disputed by the a person who submitted an invitation to the Office of Citizenship and Migration Affairs to the Head of the Office within a period of 30 days after the receipt of such decision. An invitation is a document by which a  person undertakes the obligations specified in this regulation in relation to the alien who he/she invites to reside in the Republic of Latvia (with a visa). An alien who legally resides in the Republic of Latvia or the person who invites him/her have the right in accordance with procedures prescribed by law to appeal to a court the decision taken by the Head of the Office regarding the refusal to issue a residence permit.

An alien to whom an expulsion order has been issued has the right to dispute it to the Head of the Office within a period of seven days. The Head of the Office shall extend the residence period of an alien for the time period of the examination of the submission.
The above mentioned individuals have a right to appeal against decision taken by the Head of the Office before the court.
Submission of an appeal to the court shall not give rights to an alien who has been issued an expulsion order to reside in the Republic of Latvia.

The decision regarding the forcible expulsion of an alien in the case when an alien has illegally crossed the State border of the Republic of Latvia or otherwise violated procedures prescribed by regulatory enactments for the entry and residence of aliens in the border area of the Republic of Latvia shall not be disputable or subject to appeal.
If the circumstances have changed, the Head of the Office has the right to revoke a decision regarding the forcible expulsion of an alien.

Other administrative decisions issued by the Office which have no special order to appeal may be appealed to the Administrative Court. Then, accordingly to the Administrative Procedure Act case may be revised in three levels.

In addition, for now, there is one Regional Administrative Court, one Administrative Court of Appeal and the Administrative Department of High Court in Latvia. Administrative courts came into operation in April 2004. Before that, all administrative cases in Latvia were revised by civil courts.

2.2. Difficulties dealing with immigration cases

    Up until now, immigration disputes raised no serious problematic issues before the administrative courts. Generally, legal disputes are resolved by Administrative Court of Appeal or by the High Court and they are related mostly to the interpretation of the material law.
However, the protection of privacy and family provokes important legal questions, since decision to refuse a refugee status or alternative status and immigration law decisions have to take into account Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Judges in those cases have to ascertain whether a restriction of person’s privacy and immunity of family-life, based on the prohibition to reside in the country, is considered to be proportional, corresponding and necessary in the sense of the Article 116 of the Constitution of Latvia in relation to the Article 8 of the Convention for the Protection of Human rights and Fundamental Freedoms (hereinafter referred to as the Convention):

According to the jurisprudence of the European Court of Human Rights the national court, which deal with the immigration case:
has to examine if a person has established and developed a family life in the context of Article 8 of the Convention;
has to examine if the decision, which is appealed by the plaintiff interferes with his/her rights to family life;
has to examine if the interference is prescribed by law and if it is proportional;
if the family life or interference does not exist, or, if it is stated that the interference is acceptable and proportional, the court has to examine, if there is privacy and disturbance, and, consequently, if the disturbance of privacy was justifiable, justified, adequate and proportional.

Wherewith the national courts have to take in a matter and to clarify the content and the margins of the above mentioned questions as well as to interpret the law in conformity to international acts of human rights (generally – the Convention), principles and the decisions of the European Court of Human Rights.
In the face of cases at the European Court of Human Rights against Latvia, these are the issues that make difficulties to interpret and to implement above mentioned points in the Latvian courts.
Taking into account the fact that the terms of privacy and its immunity are quite poorly analyzed in the decisions of the national courts of Latvia, the jurisprudence on this matter is at the initial stage.

However, the most recent issue concerning implementation of immigration law was raised by the High Court in a procedure before the Constitutional Court.
The difficulty was based on the provision of Immigration Act which enacts an obligation to the Office of Citizenship and Migration Affairs (the Department) to make its obligatory decision in separate cases.
The Administrative department of the High court submitted this issue to the Constitutional Court claiming contradiction of certain part of the Article 34 of the Immigration Act with Articles 96. and 110. of the Constitution.
The Article 34 of the Immigration Act says that “the issue of a residence permit shall be refused if”/.../ (one of the provisions of this article is fulfilled).
The Administrative department of the High court pointed that there is a doubt if the Article 34. in that wording corresponds to the Articles 96 and 110 of the Constitution which guarantee everyone’s right to immunity of privacy, inhabitation and correspondence as well as state protection of marriage and family. The Article 34 provides that the Department is obliged to refuse  an applicant's request, if one of the provisions of this article is fulfilled despite the reasons of the request in person’s application. In this way the discretion of the Department and the court is excluded by implementing this article, and, it excludes the Department’s and the court’s possibility to search a balance between the restriction of one’s privacy and family life with the protection of public order.  

The relevant legal question of this case was, whether the state administration should issue an obligatory (only one content) administrative act even if it is not proportional to the restrictions of the human basic rights caused by this act.

The Constitutional Court noted that the answer to the above question depends on considerations that authority has to perform, arriving at a decision to issue administrative act and setting its content. The Administrative Procedure Act distinguishes between obligatory administrative act (the administrative act of only one possible content and result determined by the material law), and three kinds of alternative administrative acts.
The authority shall issue the obligatory administrative act, if the applied regulation prescribes that only certain content of administrative act shall be issued. In this case the act of the authority is strictly ruled by the law and the authority can not decide on its own, how to implement or even whether to implement the certain provision.
Where the law prescribes to issue an obligatory administrative act, this prevents the authority to consider the usefulness of administrative act and its content.  

Though the balance of legal effect has to be considered in all cases, the principle of proportionality has to be implemented in every case when person’s fundamental human rights are restricted by the state, no matter whether there is a discretion provided to the state authority in the national law or not.
The challenged regulation of the Immigration Act does not provide the right to do consideration of usefulness however it does not relieve the state administration of its responsibility to follow the principle of proportionality.  
The objective of an obligatory administrative act is to secure equality of decision making in all typical legal occasions stated in the law.  In the case of the atypical occasion the state authority has the right to step back from the responsibility to fulfill the effect prescribed in the regulation. However such digression has to be based on solid arguments. One of such occasion might be the application of the principle of proportionality when the person’s basic human rights are restricted by the obligatory administrative act.

The Constitutional court dismissed the case at this time by pointing out that there is no reason to challenge regulation of the Immigration Act, because the disputed issue is only the matter of the interpretation of law.