CJEU - Milkiyas Addis v Bundesrepublik Deutschland, Case C-517/17, 16/07/2020

Facts:

The applicant is an Eritrean national who lodged an asylum application in Germany in 2011. In 2012, the analysis of his fingerprints revealed that he previously submitted an asylum application in Italy for which he was granted refugee status. In that regard, the Italian authorities informed the German Federal Police that the applicant was authorized to return to Italy, under the readmission agreement.

The Federal Office for Migration and Refugees (the national asylum authorities) denied the right of the applicant to seek asylum in Germany on the grounds that he had entered Germany from a safe third country, namely Italy, and ordered his deportation to Italy.

The applicant appealed that decision, and the Higher Administrative Court annulled the deportation order but dismissed the rest of the grounds for appealing the denial of his right to asylum in Germany. The deportation order was considered as unlawful as it was not formally established that Italy was prepared to take back the applicant, due to the expiration of his stay permit. However, he was rightfully denied access to asylum in Germany as there was no reason to believe that he could fear inhuman or degrading treatment, under Article 3 ECHR, if returned to Italy, considered as a safe third country.

The applicant brought an appeal in front of the Federal Administrative Court claiming that there had been no personal interview before his asylum claim was denied and that , if the application was not declared inadmissible, the asylum request could not have been refused on the ground that he had entered Germany from a safe third country.

The Federal Administrative Court declared that the national asylum authorities should not have refused to examine the asylum application based on the facts that the applicant came from a safe third country. The Court argued that domestic law should be in conformity with EU law in which a safe third country is not a Member of the European Union.

Therefore, the Federal Administrative Court stated that the national asylum authorities failed to comply with its obligation, in compliance with Article 12 of Directive 2005/85, to conduct a personal interview, and on the exhaustive list of exceptions enshrined in Article 12 (2) and (3) and Article 14 (2) of the Procedures Directive are exhaustive or based on EU law provisions that allow the Member States for other exceptions.

The Federal Administrative Court suspended proceedings and referred questions to the CJEU on the interpretation of the scope of exceptions to conducting a personal interview outlined in Directives 2005/85 and 2013/32.

Decision & reasoning:

Firstly, the CJEU recalled that Member States are to conduct a personal interview on the admissibility of the application, under Article 34 of the Procedures Directive. Referring to the present case, the CJEU stated that the aim of that provision is for the applicant to be able to express whether he/she has been already granted asylum in another Member State and whether he/she has personal factors that would enable the determining authority to decide if the applicant would fear suffering inhuman or degrading treatment, under Article 4 of the Charter of Fundamental Rights of the European Union (the Charter) if returned to that country of first asylum. Furthermore, the CJEU recalled that Article 33 of the Procedures Directive precludes Member States from making an inadmissibility decision on the grounds that the applicant has already been granted asylum in another Member State where, inter alia, the living conditions in that other MS would expose them to a real risk of inhuman and degrading treatment. It added, furthermore, that the threshold of Article 4 of the Charter is reached where the indifference of MS authorities would expose the applicant to extreme material poverty.

Secondly, the CJEU ruled that the obligation of performing a personal interview to the applicant for international protection, under Article 14 (1) and 34 (1) of the Procedures Directive, is of fundamental importance. It stated that this reasoning is based on the fact that Article 33 (2) (a) of the same Directive has to be in full compliance with Article 4 of the Charter. Therefore, the applicant has to be able to be heard on his/her specific situation and vulnerability before being sent back to a Member State where he could potentially risk to suffer inhuman or degrading treatments under Article 4 of the Charter. In that regard, the CJEU referred to Article 45 of the Procedures Directive on appeals procedures and stated that if a personal interview was not conducted at the stage of the asylum procedure by the national asylum authorities, the applicant should have been heard at a later stage during his appeals.

Further, the CJEU argued that, in compliance with Article 15 (2) and (3) of the Procedures Directive, the personal interview must be conducted under certain conditions. By referring to the Advocate General’s Opinion, the CJEU emphasized that the sole fact that EU law prescribes an exhaustive list of conditions under which the personal interview must be held aims to stress the fundamental importance of procedural guarantees, which have to be complied with prior to considering an asylum request inadmissible.

Furthermore, the CJEU affirmed that the mere fact that Article 33 (2) of the Procedures Directive has been left at the discretion of the Member State does not preclude the domestic authorities determining the asylum request to not comply with the obligation to foresee a personal interview or hearing for the asylum applicant. Thus, the CJEU called upon the referring court to determine whether the applicant was able or would still be able to be personally heard in full compliance with fundamental guarantees, under EU law. If not, the referring court should annul the decision considering the asylum applicant inadmissible and the case to be remitted to the determining authority.

Outcome:

Articles 14 and 34 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as precluding national legislation under which failure to comply with the obligation to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision on the basis of Article 33(2)(a) of that directive declaring the application to be inadmissible does not lead to that decision being annulled and the case being remitted to the determining authority, unless that legislation allows the applicant, in the appeal procedure against that decision, to set out in person all of his or her arguments against the decision in a hearing which complies with the applicable conditions and fundamental guarantees set out in Article 15 of that directive, and those arguments are not capable of altering that decision.

Subsequent proceedings:

n.a.

Observations/comments:

This summary was drafted by Clémentine Le Roy, LLM student at the Ghent University.