VI. APPEAL92 VI.APPEAL92 A) Summary of international standards An effective right to appeal against a negative first-instance decision is an essential safeguard in a statelessness determination procedure. The appeal procedure must rest with an independent body. States may permit a further judicial review, which may be limited by the procedural rules of the judicial system concerned. Appeals must be possible on both points of fact and law as the possibility exists that there may have been an incorrect assessment of the evidence at first-instance level. The choice whether the appellate body can itself grant protection under the 1954 Convention or whether it can merely quash the first-instance decision and send the matter back for reconsideration may reflect the general approach to such matters in the country’s legal/administrative system.93 B) Existing good practices Appeal mechanisms differ between countries operating a statelessness determination procedure. Some (such as Latvia, Mexico, Moldova or the Philippines) allow for administrative appeal, while others (such as France, Georgia, Hungary or Spain) only allow for judicial review. Judicial review may be performed by two or three instances, depending on the country. These characteristics of different systems usually reflect national frameworks and traditions. However, in light of UNHCR guidance, the principles explained in Section I.2 and practical experience, the following three main characteristics have been identified as crucial elements of an effective appeal mechanism:94 1. Automatic right to appeal – Considering the protection-oriented scope of statelessness determination and the human rights issues at stake, the right to appeal or seek judicial review against a negative decision should be automatic, rather than subject to any form of approval by an authority or a court. This right is guaranteed throughout the appeal/judicial review structure in France, Georgia, Hungary, Italy, Latvia, Moldova, the Philippines and Spain. 2. Centralised structure – Given the usually limited number of cases,95 together with the special character of statelessness determination (for example as compared to “standard” matters of administrative jurisprudence), centralised and specialised judicial structures may be better able to accumulate specific expertise and deal efficiently with these cases. The appeal system (including judicial review) is entirely centralised and therefore provides a good practice example in Hungary, Latvia, Moldova and Spain.96 3. Possibility to grant protection – Providing appeal bodies and courts with the possibility of granting 92 This section deals with appeal and judicial review mechanisms. It is important to note that these terms may have different meanings in different jurisdictions, languages and legal traditions. The conditions, scope, procedural aspects and consequences of these terms differ from one country to another. For the purposes of this publication appeal is understood as a generic term indicating the possibility to seek remedy by an independent decision-making body or court against a decision denying stateless status or residence permit on the grounds of statelessness. Judicial review refers to a specific form of appeal that is lodged to and decided upon by a court. 93 See UNHCR Statelessness Guidelines 2, Para 25 94 A number of other considerations exist of course 95 Note that all countries operating a statelessness-specific determination and protection mechanism report low figures. 96 Centralisation may be a result of explicit legislative rules (Hungary, Spain) or factual circumstances, i.e. the first-instance authority is centralised (Latvia, Moldova). 32