Failure to designate the specific country to which the foreigner is to be expelled is rather an exception, the use of which must be justified

If the appellate administrative authority modifies the first-instance decision on administrative expulsion to a certain country by deciding on the administrative expulsion of the foreigner without determining the country of expulsion, while the reasons for the modification decision indicates the range of specific countries to be taken into consideration as countries of expulsion as well as the grounds on which the appellate administrative authority based its decision, the requirements imposed on the process of the administrative appeal procedure and on the decision on the administrative expulsion of an foreigner in the context of the principle of non-refoulement (reflected in Article 81 of the Act on the Residence of Foreigners) require that the administrative appellate body should give the party to the proceedings the opportunity to acquaint himself with the grounds of the decision and thus to raise objections which, from his point of view, constitute obstacles to administrative expulsion.

The Border Control Department of the Police Force decided to administratively expel the applicant, a national of Tajikistan, from the Slovak Republic to the territory of Ukraine and at the same time imposed on him a ban on entering the territory of the Member States of the European Union, including the Slovak Republic, for a period of 10 years. The Directorate of Border and Foreign Police of the Police Corps, in its capacity as the appellate administrative authority, partially amended the first-instance decision by not specifying the specific country of expulsion in the operative part of the decision. With regard to the expulsion without specifying the country, it stated that, according to the data established, Tajik passport holders have visa-free travel to 23 specific countries. It then narrowed down the range of countries under consideration for expulsion to 8 specific countries, mainly referring to geographical, linguistic and cultural proximity.

The subject-matter of the cassation complaint was the judgment of the Administrative Court in Košice (Case File No 17SaZ/3/2024-151, 19 September 2024), by which it dismissed the applicant’s administrative action. The Court of Cassation identified the applicant’s plea alleging that the administrative court had incorrectly assessed the plea alleging infringement of his procedural rights as the key objection. The applicant pleaded a violation on the ground that he had not been invited to comment on the existence of obstacles to expulsion in relation to the 23 countries identified.

Referring to the will of the legislator and the meaning of Article 33 of the Administrative Procedure Code, the Court of Cassation recalled that a party to administrative proceedings has the right to comment on the documents at any stage of the proceedings. The appellate administrative authority must therefore also give the party to the proceedings the opportunity to comment on the grounds for the decision to be amended, either directly at the oral hearing or by means of a notice to familiarise with the documents; however, the notice must make it clear that the collection of the grounds for the decision has been completed.

Thus, if the administrative appeal body adopts an amending administrative decision without giving the party to the proceedings the opportunity to be heard on the basis of the decision, such a procedure constitutes a procedural irregularity on the part of the administrative authority and, in the final analysis, a defect which may affect the lawfulness of the decision. The question of the review of the unlawfulness of the administrative decision then depends on the particular circumstances of the case.

In the present case, the applicant did not know, and could not have known until he was informed of the change decision, which other third country he was to be expelled to was relevant. In his appeal against the first-instance decision, he raised a defence in relation to his expulsion to Ukraine, but he was unable to put forward arguments against the considerations of the appellate administrative authority which were unknown to him at the time. The Court of Cassation therefore disagreed with the defendant’s arguments, which were supported by the decisions of the local court in Case File No 2 Sak 5/2022 and Case File No 10 Sžak 14/2020 (which were also relied on by the administrative court), which imply that the administrative authority is only obliged to provide evidence and reports on the country to which the foreigner is to be deported on the basis of his prior procedural activity as a party to the proceedings. The Second Chamber pointed out that such reasoning is relevant in the case where the country of expulsion or the range of countries is known to the party to the administrative expulsion proceedings.

The applicant also argued that the defendant’s decision allowed him to be deported to a visa-free country with the Republic of Tajikistan without being afforded any protection against subsequent extradition to the Republic of Tajikistan, in violation of Section 81 of the Act on the Residence of Foreigners.

The Court of Cassation emphasised that, although Section 77(1) of the Act on the Residence of Foreigners allows for the possibility of not determining the country of expulsion, it must, however, be applied exceptionally, taking into account the purpose of Section 81 of the Act, which is to fulfil the international principle of non-refoulement under international law. If the administrative authority does not designate the country of expulsion, then the non-designation must be reviewable and must be supported by the grounds of the decision.

For the purposes of assessing whether the substantive conditions of the Act on the Residence of Foreigners have been met, and thus whether the principle of non-refoulement has been respected, it is necessary to determine the specific country of expulsion. If the country is not determined, but the reasons for the decision indicate the range of countries to be taken into account, then, in the light of the requirements imposed on the administrative appeal procedure and the decision on the administrative expulsion of the foreigner in the context of the principle of non-refoulement, the party to the proceedings must be given the opportunity to raise objections which, from his point of view, constitute obstacles to administrative expulsion.

The Court of Cassation reversed the decision of the administrative court by annulling the defendant’s decision and remanding the case back to the administrative court for further proceedings.

The Chamber’s decision was adopted by 3 votes to 0.

On 21 February 2025, Chamber No 2 of the Supreme Administrative Court of the Slovak Republic, composed of: the President of the Chamber, JUDr. Elena Berthotyová, PhD (Judge-Rapporteur); the Judges, JUDr. Marián Trenčan; prof. JUDr. Juraj Vačok, PhD.