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Legal remedies in asylum and immigration law: the balance between effectiveness and procedural autonomy?



Druh Další prezentace na konferencích
Popis Procedural regulation is traditionally perceived as an area influenced by the European Union law only in a limited extent. The principle of procedural autonomy leaves the procedures and remedies before the national courts to the national legal regulation. However, the need to guarantee the effectiveness of legal remedies causes tendencies leading to the stronger harmonisation not only in the area of substantive law, but also in the area of procedural rules. Those tendencies are present also in the area of asylum and immigration law, therefore more and more institutes of asylum and immigration procedure are changing due to the EU law and due to the fact that the definition of effectiveness of the remedies becomes more concrete and more uniform. The paper focuses on the changes of the legal regulation in the area of asylum and immigration procedural law, more concretely on the amendments of provisions governing the legal remedies, motivated directly or indirectly by the EU law, i. e. by the external element. Recent developments, influenced mostly by the interpretation of Article 47 of the Charter of fundamental rights of the EU, shows that the EU law affects not only the extent of the judicial review, but it has a potential to influence also the architecture of the administrative judiciary. In the Czech Republic, this is the case of current debates regarding meeting the requirements laid down in the recast of Procedures Directive, especially the implementation of full and ex nunc judicial review in asylum cases. Another example is the long-lasting debate about the necessity of judicial review in visa proceedings, which may be terminated by the activities of the European Commission and by the infringement procedure against the Czech Republic. The above mentioned development raises numerous research questions regarding the motivation of changes in area of domestic remedies in asylum and immigration law, regarding the relation of national legislator and the EU law, the balance between the implementation of principle of effectiveness and the principle of procedural autonomy, which seems to be more and more limited. The paper answers those questions on the case of the Czech Republic by means of in-depth analysis of national legislation and of motivation of legislative changes and related case law. Apart of the existing state of legislation, the papers deals with the potential changes of remedial measures in asylum and immigration law, their impact of the administrative judiciary in the Czech Republic and the possible limitation of such changes with regard to the procedural autonomy principle.
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