Information from intelligence services (the Slovak Information Service and Military Intelligence) about the security risk of a foreigner in proceedings for the extension of subsidiary protection cannot be “merely an expression of the opinion of its processor”, without appropriate factual basis recorded in the file and verifiable by the court
Legal principle stated by the Court:
- The requirement for reviewability in proceedings concerning the extension of subsidiary protection is heightened by the fact that the administrative authority may work with classified information. However, this does not mean that it is sufficient to reproduce the evaluation conclusion of the intelligence authority. Even under the regime of protecting classified information, the file (in the intelligence report) must contain (i) a description of the factual evidence and phenomena (at least to the extent of their “substance”), distinct from the opinion of the intelligence service, (ii) the source and method of their acquisition or verification (if the nature of the matter allows, with an appropriate degree of anonymisation and generalisation), and (iii) only thereafter, the evaluating consideration of the processor. Only in this way it is possible to conduct a judicial review without disclosing protected facts.
- A danger to the security of the country, and thus public policy in the sense of Section 13c (2) (d) of the Asylum Act, must be considered only a threat of such conduct as would represent a genuine, current, and sufficiently serious threat to one of the fundamental interests of society, while maintaining facts that are subject to a degree of classification, and it is necessary to take into account the individual circumstances of the foreigner’s life and consider their overall life situation.
On September 26, 2025, the Supreme Administrative Court of the Slovak Republic, by judgment Case No. 2Sak/5/2025, dismissed the cassation appeal of the Migration Office of the Ministry of Interior of the Slovak Republic (hereinafter referred to as the “Migration Office”) against the annulling decision of the Administrative Court in Bratislava in the matter of not extending the provision of subsidiary protection in the territory of the Slovak Republic to a foreigner. In the opinion of the Supreme Administrative Court, the decision of the Migration Office was based on an unreviewable document – a classified opinion of the Slovak Information Service that did not contain specific information from which the foreigner’s security risk was derived.
A foreigner from Afghanistan requested a repeated extension of subsidiary protection in the territory of the Slovak Republic, citing fears of the Taliban as a reason, as well as fear of revenge from a family whose son he had injured with fatal consequences during martial arts in the past. Although his subsidiary protection (first granted in 2011) had been repeatedly extended, in the latest proceedings, the Migration Office received both a non-classified and a classified opinion from the intelligence service. According to the non-classified opinion of the intelligence service, the foreigner was considered to pose a security risk because he was reasonably suspected of carrying out activities related to illegal migration. The Migration Office therefore did not extend the foreigner’s subsidiary protection in the territory of the Slovak Republic by its decision, because there was reasonable suspicion that the foreigner concerned posed a danger to the security of the Slovak Republic. The foreigner filed an administrative action against this decision, on the basis of which the Administrative Court in Bratislava annulled the decision of the defendant and remitted the case for further proceedings due to unreviewability and lack of reasoning.
The Supreme Administrative Court reviewed the administrative court’s judgment based on the cassation appeal filed by the Migration Office. It emphasized that, given the situation where a substantial part of the decisive information is classified, the Migration Office cannot be expected to deal in detail with the foreigner’s arguments. The Migration Office proceeded correctly when it communicated the essence of the security risk to the foreigner via the non-classified part of the intelligence service’s opinion and enabled the foreigner to comment on it. The plaintiff’s defense in this respect was general (argumentation based on family ties, employment status, or integrity), and it was not possible to require the Migration Office to take a specific position on it if it maintained the existence of a security risk based on other, non-public facts.
On the other hand, the Supreme Administrative Court identified the unreviewability of the Migration Office’s decision due to the absence of consideration of the proportionality of the interference with the rights of the foreigner, the failure to identify the overriding public interest, and the insufficient quality and verifiability of the classified opinion of the intelligence service.
The Supreme Administrative Court stated that although the classified part of the intelligence service report was used as supporting evidence, its content represents the presentation of the processor’s opinion only as an evaluative opinion, without stating the specific factual basis for the suspicions. The classified part of the intelligence service’s opinion does not contain a description of the foreigner’s actions that would pose a risk to the Slovak Republic and, according to the Court of Cassation, the report presents the opinion of the intelligence service instead of facts. Such an opinion does not allow for a judicial review of the legality and proportionality of the administrative authority’s conclusions. The classified part of the intelligence service’s opinion in this case therefore does not meet the criteria of credibility and persuasiveness that would allow the court to make a judgment on their content.
Since the decision on the granting or extension of subsidiary protection represents a significant interference with the fundamental rights of an individual, the final decision must make it clear how the Migration Office assessed the appropriateness of the interference with rights – why not extending subsidiary protection will contribute to greater security in the Slovak Republic; necessity – whether there is no less burdensome measure in relation to the rights of the foreigner and proportionality in the narrower sense – in what way did the alleged security risks outweigh the interference with the rights of the foreigner (long-term residence, family ties – partner and three minor children, previous residence status, absence of criminal prosecution, previous trouble-free life). The decision of the Migration Office did not contain such considerations and it was therefore not possible to verify whether the interference with the rights of the foreigner is proportionate.
To the reasons for the decision in the section “On the evaluation of the unclassified opinion of the SIS” the President of the Panel JUDr. Elena Berthotyová PhD. appended a dissenting opinion. In contrast to the majority of the Panel No. 2 she was convinced that the foreigner in the case in question presented qualified arguments [that he had never been prosecuted or investigated, that he was not aware of any illegal actions for alleged participation in organizing illegal migration, that he works as a taxi driver, and that his meetings with people mostly from India, Iran and Pakistan were work-related (consulting and interpreting), that he lives in Slovakia in a harmonious relationship with his partner and takes care of three minor children], also questioning the unclassified opinion of the intelligence service. According to President of the Panel, the unclassified opinion of the intelligence service also constitutes a substantial basis for the decision of the Migration Office in the case in question, and as such is subject to autonomous assessment by the Migration Office.
Therefore, a reference to the opinion of the intelligence service alone is not sufficient to certify a danger to the security of the Slovak Republic, but the administrative authority is obliged to autonomously assess it like any other evidence, in the context of other relevant evidence, including the statements of the foreigner. According to the President of the Panel, the administrative authority must not be satisfied with reproducing the conclusions of the intelligence service, but must carry out its own assessment, which will also take into account the defense of the person concerned. According to the President of the Panel, it does not follow from the decision of the Migration Office that it carried out an autonomous assessment of this document – the unclassified opinion of the intelligence service, which would include an assessment of its relevance or weight in the context of other evidence. Therefore, she did not agree in this part with the different argumentation of the majority of Panel No. 2.
The judgment was adopted unanimously by the Supreme Administrative Court, no appeal is admissible against it. The President of the Panel attached a different opinion to the reasons for the decision in the part “On the evaluation of the unclassified opinion of the SIS”.
This was decided by the Panel No. 2 of the Supreme Administrative Court, composed of: the President of the Panel JUDr. Elena Berthotyová, PhD. (Judge-rapporteur) and the members of the Panel JUDr. Marián Trenčan and prof. JUDr. Juraj Vačok, PhD.