CJEU - Case C-560/14, M v Minister for Justice and Equality, Ireland, Attorney General

Facts:

M, a Rwandese national, was admitted to Ireland in September 2016 on a student visa and, after his studies ended, made an asylum application which was rejected by the  Refugee Applications Commissioner. An appeal against the decision was also rejected by the Refugee Appeals Tribunal.

He later applied for subsidiary protection, but his application was also rejected, in particular on the basis of doubts concerning the credibility of the claims set out in his asylum application. M. appealed against the rejection of his application for subsidiary protection before the High Court. The High Court requested a preliminary ruling to the CJEU (see M. (C-277/11) and the section “subsequent proceedings” below). The CJEU ruled that national authorities are not obliged – before adopting its decision – to inform the applicant that it proposes to reject his application nor to notify him of the arguments on which it intends to base its rejection, and that it is for the national court to ensure observance of the applicant’s fundamental rights in each of the procedures (particularly of the right to be heard).

Based on this preliminary ruling, the High Court of Ireland understood that the Minister had failed to afford M an effective hearing during his application for subsidiary protection.

This decision was appealed before the Irish Supreme Court, which decided to stay the proceedings and submitted a question to the CJEU for a preliminary ruling, summarised as follows:

“Does the “right to be heard” in EU law require that an applicant for subsidiary protection be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when a Member State operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection?”.

Decision & reasoning:

First, the CJEU clarified its previous ruling in M. (C-277/11), stating that it could not be read as imposing an obligation to arrange an interview in the subsidiary protection assessment procedure. It merely stated that the fact that the applicant had been heard in the course of examining his asylum application could not suffice as proof of respect for his right to be heard during the examination of the request for subsidiary protection. (AG Opinion, para 52-55; M. C-277/11, para. 90)

Second, drawing from its decision in C-243/15 Lesoochranárske zoskupenie VLK, the CJEU reaffirmed that in the absence of EU rules governing the matter, it is for the domestic legal system of a MS to lay down detailed procedural rules (in this case, that relating to the examination of an application for subsidiary protection). It is also for the MS concerned to ensure compliance with the rights conferred by EU law (in this case, the right to be heard of applicants for subsidiary protection). Based on its jurisprudence, the CJEU affirmed that the right to be heard guarantees the applicant: (1) the opportunity to effectively put forward his views regarding his application and to positively substantiate it, and (2) the right to have his claim assessed with full knowledge of the facts and taking into account all relevant factors, and to be aware of the reasons for the decision.

Third, the CJEU ruled that an infringement of the right to be heard must be examined in relation to the rules governing the matter concerned (in this case, the standards provided in the Qualification Directive). More specifically, Article 2(e)) of this Directive requires that a decision must be made taking into account the statements and documentation put forward by the applicant and must be assessed individually, with full knowledge of the facts. Generally, the fact that an applicant for subsidiary protection has been able to set out his views in writing can suffice to respect his right to be heard, provided that the applicant is fully able to express his views and comment in detail on the elements pertinent to his case, if need be by receiving appropriate assistance (para. 40).

Therefore, the CJEU concluded that, while a “fresh” interview when considering the application for subsidiary protection would give the applicant the opportunity to add new material to what had been set out in writing, the right to be heard does not oblige MS to offer the applicant this right.

However, an interview must be arranged if the competent authority is not in a position to reach a conclusion with full knowledge of the facts based on the element available (that is, the written procedure and the interview conducted during his asylum procedure). The interview must also be arranged if the personal circumstances of the applicant (in particular, any vulnerability due to age, health conditions or for being a victim of violence) makes it necessary for him/her to comment in full on the elements capable of substantiating the application.

It is, thus, for the referring court to establish if the specific circumstances render an interview necessary to respect the applicant’s right to be heard.

Finally, it also concluded that the right to call and cross-examine witnesses goes beyond the requirements ordinarily arising from the right to be heard in administrative procedures. 

Outcome:

The right to be heard does not require, as a rule, that the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place. However, an interview must be arranged where specific circumstances (either related to the elements available to the competent authority or to the circumstances of the applicant) make it necessary in order to examine the application with full knowledge of the facts.

Subsequent proceedings:

Under M proceedings in Ireland, the High Court had previously referred a question to the CJEU (see M. (C-277/11)). In that occasion, the CJEU held that national authorities are not 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 known his views in that regard. In the case of a system such as that in place in Ireland, it is for the national court to ensure observance of the applicant’s fundamental rights in each of these procedures and, more particularly, of the right to be heard.

Observations/comments:

The CJEU decision was not fully in line with the Opinion of Advocate General Mengozzi. The AG had put forward the interpretation that the right to be heard in all proceedings required, in principle, a personal hearing of the applicant for subsidiary protection, which could only be omitted in exceptional cases.