Case summaries

The right to be heard does not require, as a rule, that, where national legislation provides for two separate procedures for examining applications for refugee status and applications for subsidiary protection, 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 render it necessary in order to examine an application with full knowledge of the facts.

The French National Asylum Court (CNDA) must do a complete assessment of facts and circumstances in deciding whether an applicant should be granted refugee status, or failing that, subsidiary protection. In doing so, it must take into account all the documentation provided by the Applicant in support of the application. In this case, the Applicant’s medical evidence documentation and the evidence relating to the potential risks she is likely to face if she returns to her country (fear of persecution due to imputed political opinions) should have been taken into account.

The CNDA did not consider that evidence and did not include it in its decision.

The European Court of Human Rights (ECtHR) found that the procedure for examining applications for family reunification had to contain a number of elements, having regard to the applicants’ refugee status on the one hand and the best interests of the children on the other, so that their interests as guaranteed by Article 8 of the Convention from the point of view of procedural requirements were safeguarded.

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.

This case deals with whether an applicant, in a system where refugee status determination and subsidiary protection are examined separately, can require the administrative authorities in that State to supply them with the results of the assessment made in advance of a decision when it is proposed that such an application should be refused. The CJEU held that the obligation to cooperation under Article 4(1) of the Qualification Directive cannot be interpreted in that way but in such a separate system the fundamental rights of the Applicant must be respected and in particular the principle of the right to be heard.

The case concerned an applicant who was to be extradited to Rwanda to stand trial on charges of genocide. He challenged the extradition on the grounds that it would violate Articles 3 and 6 of the Convention.

A risk of persecution of a refugee can extend in time beyond the period during which the actual events took place that resulted in a flight in search of protection. The risk should be assessed taking into account all the evidence and documentation at the Applicant’s disposal.

This Judicial Review concerned the way in which the Minister for Justice should assess applications for subsidiary protection and, in particular, whether the duty to ‘co-operate’ with the applicant  referred to in Art 4.1 of the Qualification Directive 2004/83/EC means that the decision maker must communicate matters of concern to the applicant before making a final decision. As there appeared to be a conflict between the Irish and Dutch interpretations of Art 4.1, and uncertainty as to the true meaning of the phrase ‘in co-operation with’ the Court (Hogan J) referred a question to the CJEU.

For the exclusion ground of war crimes or crimes against humanity to be applicable it is not necessary to establish to the point of utmost certainty that a refugee has committed such crimes, it is sufficient if serious reasons justify this assumption.  A revocation of refugee status is also possible if war crimes or crimes against humanity have been committed after refugee status was granted.

Passive complicity in genocide includes a material element and an intentional element, as active complicity does.