The Applicant was a national of Rwanda who claimed refugee status in Ireland. The Refugee Applications Commissioner recommended that he not be declared a refugee. This recommendation was confirmed by the Refugee Appeals Tribunal on the grounds that the Applicant’s claim was not credible. The negative recommendation was accepted by the Minister and the Applicant was denied refugee status. He then applied for subsidiary protection under the terms of the EC (Eligibility for Protection) Regulations 2006. The Minister relied heavily on the negative decisions of the Commissioner and the Tribunal in refusing the Applicant subsidiary protection. The Minister found that the Applicant had not established that he would be at risk of serious harm if her were to be returned to Rwanda. The Applicant obtained the leave of the High Court (Cooke J.) to challenge the Minister’s decision refusing him subsidiary protection. The Applicant’s challenge was based on Article 4(1) of Council Directive 2004/83/EC (incorporated in Ireland by the 2006 Regulations), which states that ‘Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.’ The Applicant argued that Article 4 imposed a duty on the Minister to communicate with him during the course of the assessment of his application. Specifically, he argued that in the event of a proposed decision adverse to him, this duty of cooperation meant that the Minister was obliged to supply him with a draft decision in advance for his comments.
In its judgment on the substantive application for judicial review, the High Court (Hogan J.) referred to the judgment of Birmingham J. in Ahmed v Minister for Justice, Equality and Law Reform, Unreported, High Court, 24 March 2011, in which the Court had found that Article 4 imposed no duty of communication with applicants on the Minister. Hogan J. pointed out that although the judgment in the Ahmed case was not strictly binding, the established practice was that previous judgments of courts of coordinate jurisdiction should be followed. However, Hogan J. also considered a 2007 decision of the Dutch Council of State in which it had been held that the Dutch authorities were obliged to inform applicants of the results of the assessment of their applications before a decision had been made so as to facilitate them in remedying elements that might incur an negative decision. In the circumstances, the High Court decided, pursuant to Article 267 TFEU, to refer a question to the Court of Justice of the European Union in the following terms:
In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of Council Directive 2004/83/EC require the administrative authorities of the Member State in question to supply to such applicant the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?
Hogan J. suggested that the question should be answered in the negative.