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.
Subsidiarity and ‘Arguability’: The European Court of Human Rights Case Law on Judicial Review in Asylum Cases, in International Journal of Refugee Law 2009, p. 48-74