4.10.5. Western Europe

In Switzerland, the Asylum Act (LASi)937 was modified by adding paragraph 1bis to Article 102 to provide access to free legal counselling or representation after an asylum applicant has been transferred to a canton if the services were received while accommodated in a federal centre. The legislative amendment is expected to enter into force in 2022, once the referendum deadline has passed. 

 

Asylex in Switzerland noted practical issues with the provision of legal aid in the appeal procedure. For example, a lawyer has full discretion to submit an appeal or not, and this fact, coupled with a short deadline for an appeal, results in a lack of access to a judicial review of a negative decision. In addition, the remuneration of lawyers is by lump sum per asylum seeker, irrespective of the workload or the submission of an appeal, thus demotivating legal practitioners to engage in such cases.938

 

Legal advice and representation for asylum applicants in Ireland are provided by the Legal Aid Board, an independent body which is established under statute. Certain law centres in Dublin, Cork and Galway have solicitors employed by the board who specialise in international protection. The board operates a mixed model of service delivery to asylum applicants which involves both the use of in-house staff and the referral of cases to private solicitors on a panel. Arrangements were being made to implement legislative changes and recommendations made in October 2020 by the Advisory Group on the Provision of Support including Accommodation to Persons in the International Protection Process. The Legal Aid Board is included in this work, which is being undertaken by Ireland’s Department of Justice, to identify how processing and general support to applicants can be further enhanced, taking into account a projected increase in new applicants who will wish to receive legal aid. Stakeholders expected that continued video hearings will have a sustained positive impact on the efficiency of the support from the Legal Aid Board. Funding of EUR 47.2 million has been allocated to the Legal Aid Board for 2022, representing an increase of 7.5% on the 2021 allocation of EUR 44.6 million. 939

In France, the Legal Aid Bureau experienced a sharp increase in requests for legal aid related to asylum cases, specifically 53% more than in 2020 – in addition to the number of appeals before the CNDA. Since the implementation of video-conference hearings at the Administrative Court of Appeal in Nancy in September 2021, more lawyers showed interest to assist in asylum-related cases remotely. 940

Lawyers in Germany have access to an applicant’s original case files on the electronic management system. An administrative court considered a lawyer’s complaint that access to an incomplete electronic file is not compliant with the recast Asylum Procedures Directive, Articles 23 and 46 and the EU Charter, Article 47 and it referred the question to the CJEU on the compatibility of national practices with procedural safeguards enshrined in EU law (case C-564/21). 

When an applicant submitted an asylum application after multiple attempts, the Brussels Labour Court adopted an interim judgment and ordered Fedasil to provide accommodation and legal assistance immediately (see Section 4.7). 

In Luxembourg, the Administrative Tribunal ruled on requirements for the admissibility of an appeal against a negative decision finding that failure to have the signature of a lawyer included in List I of the Bar Associations regulation was a reason to deem an appeal as inadmissible. The procedural formalism may hinder access to second instance determination in asylum cases when representing lawyers are not on the required list.

Although the German Federal Constitutional Court found the legal provisions on the airport procedure to be constitutional (2 BvR 1516/93), civil society organisations continuously denounced the German airport procedure for issuing decisions on asylum applications in 2 days, risking that not enough time is provided to properly access legal information and assistance.941