The ECJ gave judgment on a preliminary reference by the High Court in the context of judicial review proceedings challenging the decision of the Minister refusing the applicant’s application for subsidiary protection. In essence, the question referred by the High Court was:
does the requirement to cooperate with the applicant for subsidiary protection, following a refusal to grant refugee status, and where it is proposed that the subsidiary protection application should be refused, imposed on the Member State in Article 4(1) of the Qualification Directive, require the administrative authorities to supply the applicant with the results of such an assessment before a decision is finally made so as to enable him to address those aspects of the proposed decision which suggest a negative result?
This argument had been rejected in previous decisions but the High Court decided to refer a question to the ECJ on the interpretation of Article 4(1), in light of views expressed by the Dutch Council of State which seemed to support the applicant. The High Court expressed the view that it did not believe there was any breach of fair procedures by the Minister in this respect.
The ECJ also considered that the case raised the more general question of an applicant’s right to be heard in the course of the examination of his application for subsidiary protection and it addressed this issue in the second part of its judgment.
The applicant was a national of Rwanda of Tutsi ethnicity. He entered Ireland in 2006 for the purpose of post-graduate study on a student visa. He conducted research work in Ireland relating to war crimes and genocide. Shortly after his visa expired he applied for asylum. He claimed that he would run the risk of prosecution before a military court for having openly criticised the manner in which investigations into the 1994 genocide were carried out. He maintains that he was severely affected by the genocide and several of his immediate family members were killed. He claimed that following his graduation as a law student from the University of Rwanda in 2003, he sought employment in the civil service. However, he was refused and was coerced into taking a junior post in the military prosecutor’s office, since subjecting him to military law was a means of silencing him and preventing him divulging information concerning the genocide which might have proved uncomfortable for the authorities. He maintained that he was strongly advised not to protest and that a military officer was killed because he started to ask awkward questions about the conduct of the investigations into the genocide.
The Refugee Applications Commissioner’s office rejected his application for refugee status on the ground that his claim to fear persecution in Rwanda was not credible. The Refugee Appeals Tribunal affirmed this finding. In the procedure on appeal he was denied an oral hearing before the Tribunal on the ground that he had not applied for asylum as soon as reasonably practicable and had not given a convincing reason for his failure to do so. The Minister informed the applicant that he was refused refugee status. The applicant made an application for subsidiary protection.
The Minister rejected the application and relied to a large extent on his earlier decision of 2008 rejecting the applicant’s asylum application for the conclusion that the applicant had not established there were sufficient grounds to demonstrate he was at risk of serious harm in Rwanda, since there were serious doubts about the credibility of his claims.
The applicant challenged the legality of the Minister’s decision on the ground that the procedure for examining the application did not comply with EU law. He argued in particular that Ireland had not fully transposed Article 4(1), second sentence, Article 4(2) and the start of Article 4(3), and in addition, that the Minister failed to comply with certain rules of EU law in his examination of the application including the right to be heard. He argued that this right requires, as a general principle of EU law and even in the absence of a specific provision, that the person concerned should be placed in a position where he can effectively make his views known regarding the information on which the authorities intend to base their decision, where that may culminate in an act adverse to the person.
Duty to cooperate
The ECJ held that it could not accept the applicant’s argument that the rule in Article 4(1) required the national authority responsible for examining a subsidiary protection application to supply the applicant with the elements on which it intended to base its decision and to seek the applicant’s views in that regard, before adopting a negative decision and where an application for asylum by him had previously been refused. A requirement of that kind did not result from the wording of the provision and was not in keeping with the system for processing international protection applications.
The Court found that Article 4(1) relates to the assessment of facts and circumstances and the assessment takes place in two stages. The first stage concerns the establishment of factual circumstances or evidence that supports the application. The second stage is the legal appraisal of that evidence. This latter stage entails deciding whether, in light of the specific facts of the case, the substantive conditions in Articles 9 and 10 (conditions for recognition of refugee status) or Article 15 (conditions for eligibility for subsidiary protection) are met.
It considered that the requirement that the Member State cooperate with the applicant per Article 4(1) means that, if for any reason, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State to cooperate actively with the applicant at that (first) stage, so that all the elements needed to substantiate the application are assembled. This is supported by Article 8(2)(b) of the Procedures Directive (2005/85/EC) whereby Member States must ensure that precise and up to date information is obtained on the general situation prevailing in the countries of origin or transit of applicants for asylum. Therefore, Article 4(1) only relates to the first stage of the assessment of facts and circumstances.
The applicant’s argument concerned the second stage relating to the appraisal of the conclusions to be drawn from the evidence provided, at the time when it is being determined whether that evidence does in fact meet the conditions required for international protection. That examination, the Court said, is solely the responsibility of the national authority and at that stage of the procedure a requirement that the authority cooperate with the applicant per Article 4(1), second sentence, is not relevant.
Therefore, the ECJ held that the requirement on the Member State to cooperate with an applicant per Article 4(1), second sentence, cannot be interpreted to mean that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is obliged – before adopting its decision – to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make his views known.
Right to be heard
However, although this was not part of the question referred by the High Court, the ECJ considered that the case raised more generally the question of the right of a foreign national to be heard in the course of the examination of his (second) application for subsidiary protection where that application is made following the rejection of his initial application for refugee status, which was dealt with in a separate procedure, during which the applicant was able properly to make known his views.
The ECJ stated that it was important to determine whether, in such circumstances, where there are two separate procedures, one after the other, for examining asylum applications and subsidiary protection applications, it was unlawful under EU law not to hold a further hearing of the applicant in the course of an examination of the subsidiary protection application, prior to its rejection, on the ground that he has already been heard during the procedure relating to his application for refugee status.
While the Procedures Directive provided that an applicant for asylum must be given the opportunity of a personal interview, this only applied where there was a single procedure for the examination of both asylum and subsidiary protection applications. However, Ireland had chosen to establish two separate procedures, with the possibility to make the (second) subsidiary protection application only after the (first) asylum application has been rejected.
The ECJ stated that the right to be heard in all proceedings is inherent in the observance of the rights of the defence as a fundamental principle of EU law. This is affirmed not only in Articles 47 and 48 of the EU Charter of Fundamental Rights, but also in Article 41 which guarantees the right to good administration. Article 41(2) provides that the right to good administration includes among others the right of every person to be heard, before any individual measure which would adversely affect him is taken. The Court affirmed the importance of the right to be heard and its very broad scope in EU law. The right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person. Therefore, observance of that right is required even where the applicable legislation does not expressly provide for such a procedural requirement.
The ECJ held that the right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to adversely affect his interests. This right also requires the authorities to pay due attention to the observations submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision.
It followed, the Court said, that the right to be heard must apply fully to the procedure in which the national authority examines an application for international protection pursuant to the Common European Asylum System rules.
The Court did not accept that where an application for subsidiary protection is dealt with in a separate procedure, which requires it to take place after the rejection of an asylum application and where the applicant has been heard in that (asylum) examination, that it is not then necessary for the applicant to be heard again for the purpose of considering his subsidiary protection application because the formality of a hearing replicates the hearing he has already had in a largely similar context.
The ECJ stated, rather, that when a Member State has chosen to establish two separate procedures, one following the other, for examining asylum applications and subsidiary protection applications, it was important that, in view of its fundamental nature, the applicant’s right to be heard was fully guaranteed in each of the two procedures. This was all the more justified in a situation, such as this case, where the national authority (the Minister), in stating the grounds for rejecting the application for subsidiary protection, referred to a large extent to the reasons already relied upon to reject the asylum application, although the conditions for the grant of refugee status or subsidiary protection status are different.
The ECJ held that Member States must not only interpret their national law consistently with EU law but also ensure that they do not interpret national law in a manner which would conflict with the fundamental rights protected by the EU legal order or other general principles of EU law.
It held that, in the case of a system such as in Ireland, where there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, it is for the national court to ensure the applicant’s fundamental rights are observed in each of these procedures, particularly the right to be heard in the sense that the applicant must be able to make his views known before any decision is adopted that does not grant the protection requested. The fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.
The requirement on the Member State to cooperate with an applicant per Article 4(1), second sentence, cannot be interpreted to mean that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is obliged – before adopting its decision – to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make his views known.
However, in the case of a system such as in Ireland, where there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, it is for the national court to ensure the applicant’s fundamental rights are observed in each of these procedures, particularly the right to be heard in the sense that the applicant must be able to make his views known before any decision is adopted that does not grant the protection requested. The fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.