Ireland - High Court, 23 January 2013, M.M. v Minister for Justice and Law Reform & Ors. [2013] IEHC 9
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
This case concerned the appropriate interpretation to be given to the determination of the Court of Justice in Case C-277/2012, M.M. v. Minister for Justice, Equality and Law Reform in answer to the questions posed by the High Court of Ireland pursuant to Article 267 TFEU.
The Court of Justice answered in the negative the question posed that the duty to cooperate required the decision maker to supply the Applicant with a draft of any possible adverse decision for comment prior to its formal adoption.
However, the Court of Justice also considered the Irish system for protection decision making more broadly and concluded that it was unlawful not to allow for a further hearing of the Applicant in the course of examination of the subsidiary protection application – following the conclusion of a negative decision on an asylum claim.
The High Court held that the appropriate interpretation to be given to the judgment in this regard was that, in order for a hearing to be effective, it would at a minimum, involve a procedure whereby the Applicant was invited to comment on any adverse credibility findings made at the asylum stage; a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection; and a completely fresh assessment of the Applicant's credibility in circumstances where the mere fact that the asylum decision maker had ruled adversely on this question would not in itself suffice or be directly relevant to this fresh credibility assessment.
The Court opined that the finding of the Court of Justice did not suggest that an oral hearing would be routinely required at subsidiary protection stage, but considered it unnecessary at that juncture to conclusively determine the issue.
Facts:
The Irish system for subsidiary protection is open to failed asylum seekers only. Asylum cases are first decided by the Office of the Refugee Applications Commissioner (ORAC) with an appeal to the Refugee Appeal Tribunal (RAT), the application for subsidiary protection is made to the Minister for Justice, Defence and Equality. See Country Overview.
This Applicant had the benefit of a personal interview before the ORAC, the appeal before the RAT was in writing only, and because a personal interview did not form part of the subsidiary protection procedure for any applicants, there was no further interview for subsidiary protection.
The issue in the proceedings was the extent to which the Minister is obliged to give an applicant a separate opportunity to be heard in respect of the subsidiary protection application in view of the decision of the Court of Justice of 22nd November, 2012, in Case C-277/2012, M.M. v. Minister for Justice, Equality and Law Reform, which was referred pursuant to Article 267 TFEU by the same Court in this case.
In the earlier case, the Applicant complained about the use of country of origin reports by the decision maker that were not disclosed to the Applicant, and the Court found that there was no breach of fair procedures because the Minister, by reference to Article 4(3)(b)(ii) of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), is entitled to rely on information generally in the public domain, being as it is, "such other information relevant to the application as is within the Minister's knowledge."
The Applicant also argued that the second sentence of Article 4(1) of the Qualification Directive ("In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application") imposed a duty on the Minister to supply an applicant with a copy of any draft decision adverse to the applicant for comments prior to its adoption. Previous decisions of the Irish High Court held against this proposition but it was decided to make a reference to the Court of Justice in light of certain comments of the Dutch Council of State which seemed to support the Applicant's case in a judgment delivered in July, 2007 and which were brought to the Court’s attention in this case.
The Court of Justice went beyond the question originally asked and also considered whether it was unlawful not to allow for a further hearing of the Applicant in the course of examination of the subsidiary protection application, and this is how the issue came before this Court at this juncture.
Decision & reasoning:
It was clear to the High Court that the Court of Justice rejected the argument that the duty to cooperate required the decision maker to supply the Applicant with a draft of any possible adverse decision for comment prior to its formal adoption.
However, in the second part of the Court of Justice's judgment from paragraphs 75-95, the Court of Justice held that it was unlawful not to hold “a further hearing” in the course of examination of the subsidiary protection application. The High Court considered what was meant by the words "a further hearing" and concluded from the context - and in particular that it could not have been overlooked that a written application procedure was afforded to the Applicant - that what was being referred to by the Court of Justice was an oral hearing.
The High Court considered that the judgment of the Court of Justice when read in its totality could not however, be interpreted as meaning that an oral hearing would be routinely required at subsidiary protection stage, although it did not conclusively decide that issue.
The High Court held in light of the decision of the Court of Justice that the Minister failed to afford the Applicant an effective hearing at subsidiary protection stage, because he relied completely on the adverse credibility findings which had been made by the asylum decision maker and because he made no independent and separate adjudication on these claims.
It was held that the appropriate interpretation to be given to the judgment was that in order for the hearing to be effective, it would at a minimum involve a procedure whereby the Applicant was invited to comment on any adverse credibility findings made at the asylum stage; a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection; and a completely fresh assessment of the Applicant's credibility in circumstances where the mere fact that the asylum decision maker had ruled adversely on this question would not in itself suffice or be directly relevant to this fresh credibility assessment.
Outcome:
Relief granted: the Minister’s refusal of the application for subsidiary protection was quashed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| TFEU - Art 267 |
| Ireland - Refugee Act 1996 - Section 13(6)(c) |
| Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 5(1)(b) |
Cited Cases:
| Cited Cases |
| Ireland - High Court, 18 May 2011, M.M.v Minister for Justice Equality and Law Reform 2011 No. 8 J.R. |
| Ireland - High Court, 27 April 2012, H.M v Minister for Justice and Law Reform, [2012] IEHC 176 |
| Ireland - Ahmed v. Minister for Justice, Equality and Law Reform, (Unreported), High Court, Birmingham J. 24 March 2011 |
| CJEU - C-17/74 Transocean Marine Paint Association v Commission of the European Communities |
| CJEU - C-27/09 French Republic v People's Mojahedin Organization of Iran |
| CJEU - C-277/11 M.M. v Minister for Justice, Equality and Law Reform, Ireland, Attorney General |
| Ireland - High Court, Dbisi v Minister for Justice (Unreported, High Court, Cooke J), 2 February 2012 |
| Ireland - Supreme Court, Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49 |
| Ireland - High Court, 11 September 2012, Barua v Minister for Justice and Equality, [2012] IEHC 456 |
| CJEU - C-435/97, World Wide Fund v. Autonome Provinz Bozen |