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International Journal of Refugee Law Advance Access originally published online on January 15, 2009
International Journal of Refugee Law 2009 21(1):48-74; doi:10.1093/ijrl/een039
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© The Author (2009). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.permissions@oxfordjournals.org

Subsidiarity and ‘Arguability’: the European Court of Human Rights’ Case Law on Judicial Review in Asylum Cases

Thomas Spijkerboer*

* Professor of Migration Law at VU University, Amsterdam, the Netherlands

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.


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