Shauna Gillan, Tribunal Member, International
Protection Appeals Tribunal*
*The author is writing in a personal capacity
*The author is writing in a personal capacity
Introduction
The recent ruling of the Court of Justice (CJEU) of 9 February 2017 in the case of M v Minister for Justice and Equality, Ireland and Anor in is the fourth time that Court has given judgment on Ireland’s unique and evolving procedure for determining claims for Subsidiary Protection. Subsidiary Protection is a European Union law status provided for by the Qualification Directive (originally Directive 2004/83, now Directive 2011/95 – although Ireland, like the UK, only opted in to the former version) that is designed to complement the protection for refugees provided by the 1951 Refugee Convention.
Subsidiary Protection protects those
who do not fit the strict definition of a refugee, but who are nonetheless at risk of serious harm in
their home country. Ireland has up to now dealt with these two types of
(similar, but not identical) claims via entirely separate decision-making
processes.
The litigant (‘M’), a Rwandan national, brought test
case litigation on the Irish procedure on 6 January 2011. At the time, all
subsidiary protection applications were determined by the Minister for Justice in
an administrative procedure that carried no right of
appeal. The ensuing protracted litigation included two
references to the CJEU from two different
Irish Courts; the most recent, a reference from the
Supreme Court, is considered in the ECJ’s recent judgment.
The Irish system has undergone significant
changes over the years during which M’s case has been in train, rendering
the Court’s findings somewhat moot; however the case speaks to a
fundamental principle of EU law: the right to be heard in matters that
significantly affect one’s interests.
The facts of
the case
M, a law graduate, made an asylum application in
Ireland in May 2008. He was interviewed and his claim was
rejected at first instance in August 2008. M’s subsequent appeal to
the Refugee Appeals Tribunal was refused, in October 2008. The appeal was on
the papers: the first instance decision-maker had invoked a provision in Irish
law that denied him an oral appeal (on account of his having delayed before
making his asylum claim). M subsequently lodged a claim for subsidiary protection.
At that time, the Irish system was structured in such
a way that individuals could not simultaneously claim both asylum and
subsidiary protection. Only once an asylum claim
was finally determined, could a person claim subsidiary
protection (or indeed permission to remain on other
grounds). All claims for subsidiary protection were decided by the Minister for Justice
(as distinct from asylum claims, which were decided by an independent body). No
personal interviews were carried out for these types of claim, and
there was no right of appeal. In M’s case his claim for subsidiary protection was
rejected in writing on 30 September 2010. The delay – of almost two years – was
not uncommon. The Minister’s decision relied to a large extent
on the two earlier decisions that had rejected M’s claim for asylum, and
in particular the negative credibility findings therein.
M challenged the Irish procedure in
the High Court, who referred the following question to the CJEU for a
preliminary ruling:
‘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 … Directive
2004/83 … require the administrative authorities of the
Member State in question to supply such applicant with 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?’
The CJEU, in its judgment
of 22 November 2012, M. (C-277/11, EU:C:2012:744), answered
this question in the negative. However, somewhat unusually, the CJEU
went on to consider a further question: whether M’s ‘right to be heard’ had been
respected. The CJEU found that it had not: M should have been afforded an
opportunity to make his views known before a decision was reached on his claim
for subsidiary protection. The fact that M had had an interview for his earlier
asylum claim was insufficient.
The case returned to the Irish High Court,
who held on 23 June 2013 that the Minister for Justice had wrongly failed
to afford M an effective hearing when his application for subsidiary protection
was being examined. The Minister brought an appeal against that
decision before the Supreme Court and M also brought a
cross-appeal – neither party considered the High Court had correctly
interpreted the CJEU judgment.
While that appeal was pending, on 14 November
2013, the Irish authorities changed the procedure to give effect to the
High Court judgment. Personal interviews for applicants for
subsidiary protection were introduced, as were full appeal rights to
the Tribunal. However instead of fusing the decision-making process for the two
claims (as is done in all other EU States) the new procedure dealt with the applications
separately: one claim after the other. Applicants for international protection, if
unsuccessful, were put through a near-identical process, twice: a personal interview, a first
instance decision, an appeal to the Tribunal, another personal interview, another
first instance decision and a further appeal. This process, naturally, gave
rise to delays.
Meanwhile M’s test case litigation continued. The
Supreme Court stayed the proceedings and on 24 November 2014 referred another
question to the CJEU:
‘Does the “right to be
heard” in European Union law require that an applicant for
subsidiary protection, made pursuant to Council Directive
2004/83/EC, be accorded an oral
hearing of that application, including the right to call or
cross-examine witnesses, when the application is made in circumstances
where the Member State concerned operates two separate procedures, one
after the other, for examining applications for refugee
status and applications for subsidiary protection,
respectively?’
On 9 February 2017, the CJEU gave
judgment. The Court held that, as Ireland was not operating a single procedure
to determine asylum and subsidiary protection (the model employed by
other European Union States), the Procedures Directive (Directive 2005/85;
Ireland opted out of the later Directive 2013/32,
which replaced it) did not apply to claims for subsidiary protection in Ireland.
This reiterated a point the CJEU had settled previously, and most recently
restated last year (in another Irish case): Danqua
v Minister for Justice and Equality Ireland [2016] EUECJ C-429/15. The CJEU emphasised that the right to be heard was an
important general principle of EU law. When making a decision that
significantly affects a person’s interests (as here), the State
must ensure that their right to input into
that decision is facilitated, so as to give full effect to the
right to be heard.
The CJEU went on to discuss the scope
of that right, finding that a personal interview would not
necessarily be required for all subsidiary protection claims, given that a
substantive asylum interview would already have been
carried out. The Irish authorities had essentially played it safe
after the CJEU’s first judgment in this case, by bringing in personal interviews
across the board, for all subsidiary protection cases. The CJEU clarified that what it
had meant was that there must be some way for an applicant’s views to be heard.
This could be in writing or by personal interview – depending on the
individual case. Some cases may require a fresh interview, and some may not.
The CJEU made clear that the Irish authorities are free to rely on the information gathered in the course of assessment of an asylum claim (including statements made
in an interview or at a hearing) when it comes to assess the claim for subsidiary protection. The critical matter is that the state must carry out
an individualised assessment of the
relevant facts; whether an interview is necessary so to do – in the
particular situation of Ireland’s bifurcated system for
assessing international protection claims – is fact-specific.
Further
developments
The outcome of the CJEU decision has been
overtaken by recent events. On 31 December 2016 a new procedure for
international protection claims was brought into force via
the commencement of relevant sections of the International
Protection Act 2015. The Act provides for a
new, fused ‘single procedure’ whereby asylum and subsidiary protection claims
will be assessed at the same time and determined in one decision.
That decision, if negative, can be appealed to the Tribunal on both asylum
and subsidiary protection grounds (in the same hearing, for the first time). The introduction of a single procedure brings Ireland into line with
the rest of the European Union. The new system,
once fully up and running, is likely to result in a reduction of
delays in what had developed over the years into an overly prolonged system for assessing international
protection claims.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: smelltheroses blog
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