Thursday 8 May 2014

Procedural rights and subsidiary protection

By Steve Peers

The first phase legislation of the Common European Asylum System (CEAS) set out a definition of ‘subsidiary protection’ (protection for those individuals who did not qualify for refugee status, but who still should not be sent back to their country of origin) in the Qualification Directive. However, other first phase CEAS legislation, most notably the asylum procedures Directive, did not apply to those applying for subsidiary protection. Nor did that legislation expressly regulate the relationship between refugee and subsidiary protection status.

This rather peculiar gap has been filled in several ways. First of all, as for the future, the second-phase CEAS legislation applies fully to applicants for subsidiary protection, and also regulates the relationship between refugee and subsidiary protection status. However, some of that legislation will not apply until July 2015; most notably, the Directive on international protection procedures (which replaces the asylum procedures Directive) will only apply to applications made after that point.

Secondly, a large majority of Member States already have a ‘one-stop shop’ procedure, in which applications for subsidiary protection are considered along with applications for refugee protection. In that case, the rules in the asylum procedures Directive apply to the whole procedure.

Thirdly, where Member States do not have such a procedure, the CJEU ruled in the M judgment that the general principle of EU law, set out in Article 41 of the EU Charter of Fundamental Rights, on the ‘right to good administration’, applied to the national process of considering subsidiary protection claims, even though the wording of the Charter restricted that right to EU bodies (as distinct from national administrations).

Today’s judgment in HN raises further questions about the nature of the procedure for deciding on subsidiary protection claims in Member States which do not have a ‘one-stop shop’. Furthermore, it has broader relevance beyond such situations. Like the M case, the HN case concerns a subsidiary protection application made in Ireland. Irish law not only requires two separate procedures for examining refugee and subsidiary protection status, but also requires the first issue to be resolved before the second one is. Mr. HN, who considered that he had no chance of success as regards refugee status but a good argument for subsidiary protection status, argued that these rules breached EU law.

 According to the CJEU, they did not. First of all, in light of the pre-eminence of Geneva Convention refugee status in the Treaties and secondary EU law, subsidiary protection is ‘intended for third country nationals who do not qualify for refugee status’. It followed that ‘an application for subsidiary protection should not, in principle, be considered before’ an authority concludes that an application for refugee status is unfounded. So the national law could not be criticised on that ground.

The CJEU also considered two other aspects of EU law: the principle of effectiveness and the right to good administration. As regards effectiveness, while Member States have some discretion to regulate the subsidiary protection process unless they have a ‘one-stop shop’ in place, such discretion is not unlimited. Since a two-step process delays the application process, it must be possible to make an application for both types of status at the same time, and to consider the subsidiary protection claim ‘within a reasonable period of time’, taking account also of the time taken to decide on the refugee claim first.

As for the right to good administration, the CJEU confirmed that Article 41 of the Charter was applicable to national proceedings linked to EU law. In this case, the relevant provisions were the right to an impartial decision, and the right to a decision within a reasonable time. The ‘reasonable time’ rule applied in the same way as the principle of effectiveness. Furthermore, the principle of impartiality was not violated simply because the applicant had been told, due to the failure of his refugee claim, that he might be deported, even before the subsidiary protection application was decided.


There are a number of broader implications of the Court’s ruling. First of all, its confirmation that Article 41 of the Charter applies to all national proceedings within the scope of EU law is relevant well outside the scope of asylum law, and is therefore important given the large role that national administrations have in implementing EU law. For instance, the finding could be relevant as regards immigration, free movement or tax decisions (along with many others).

Secondly, while the Court’s judgment refers specifically to the right to an impartial decision, and to a decision within a reasonable time, there are several other aspects of Article 41 which must be equally applicable to national administrative decisions linked to EU law. In the M judgment, the CJEU already referred to the right to be heard. Article 41 also refers to fair administration, access to the file, the obligation to give reasons for decisions, a right to damages and linguistic communication rights.

As for the issues specific to asylum law, the Court’s judgment must logically mean that Article 47 of the Charter (the right to a court and an effective remedy) is also applicable to subsidiary protection claims by analogy, even in Member States without a one-stop shop. Arguably the EU Charter’s rights to dignity and social protection are also applicable to applicants for subsidiary protection in such Member States.

The Court’s approach in the M and HN cases is also relevant by analogy to cases where people apply for refugee or subsidiary protection in Member States from outside EU territory, after interception on the high seas for instance. While the asylum procedures Directive does not apply outside EU territory, there is no such geographic limit on the scope of the qualification Directive. So logically, the latter Directive applies to claims made outside of EU territory to Member States, and the Charter applies as regards procedural rights in such cases.

The Court’s approach to the relationship between refugee applications and subsidiary protection applications will make it more difficult for applicants to avoid the imposition of the EU’s ‘Dublin’ rules on allocation of asylum cases simply by means of withdrawing a refugee application, but simultaneously making or maintaining a subsidiary protection application. But this point is only relevant to applications made before the start of 2014 anyway, since as from that date the Dublin III Regulation applies, and that Regulation has extended the ‘Dublin’ rules to cover subsidiary protection applications.

What about the relationship between refugee status and purely national forms of protection outside the scope of the qualification Directive? There is nothing in the Court’s ruling today that addresses the relationship between such national forms of protection, which have not been harmonised by EU law at all, and the qualification Directive (or other EU asylum law, such as the Dublin rules). So it is still open to argue, for instance, that the Dublin rules cannot apply if a person is expressly applying only for a national form of protection. Conversely, it might be desirable to argue that the HN judgment applies by analogy if a Member State awards an applicant for refugee and/or subsidiary protection a purely national form of status, which gives that person fewer rights, without considering the former claims on the merits.

It is clear from this judgment that a claim for refugee status must always be refused before the possibility of subsidiary protection can be examined. This rule applies even before the second-phase procedures Directive sets it out expressly in EU law, and so applies to applications made before July 2015, including pending applications. Arguably, a Member State which has already awarded a person subsidiary protection without considering the merits of a refugee application can be called upon to reopen that process. However, it might be necessary for further case law to clarify the position where a person wishes to appeal the decision to refuse refugee status while the consideration of the subsidiary protection claim is ongoing.

Finally, it should be noted that even though the UK and Ireland have opted only into the first-phase qualification and procedures Directives, some key rules in the second phase legislation nevertheless apply to them, as a result of the CJEU’s interpretation of the first phase rules in its case law. In particular, they are bound by some basic procedural rules as regards subsidiary protection applications; they must consider a refugee claim before a subsidiary protection claim; and they must decide those claims within a reasonable time (although that rule is less precise than the precise time limits in the second-phase procedures Directive). So just because a rule appears expressly in the second-phase asylum law, but not in the first-phase asylum law, it doesn’t necessarily mean that the UK and Ireland are not bound by it; it is still possible that the first-phase legislation contains that rule implicitly. Of course, this is only one of the many legal complications arising from the complex system of opt-outs from EU law.

Barnard & Peers: chapter 8, chapter 26

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