Case summaries

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.

If a subsequent application for international protection is submitted, the administrative authority must evaluate whether the applicant has presented any new facts that, through no fault of the applicant, had not been the subject of examination in the previous proceeding. Otherwise, the application is inadmissible and the proceedings must be stopped.

This was an application for an interim injunction preventing the removal of the applicants pending the outcome of their application for leave to apply for judicial review.  The underlying leave application raised several different points, of these, one was deemed arguable: that Ireland’s deportation regime involving a lifetime ban on re-entry is contrary to the ECHR and Irish Constitution.

This was a decision on an injunction application in the course of judicial review proceedings challenging a subsidiary protection decision and deportation order on the basis of a failure by the Minister to cooperate with the applicant in processing the subsidiary protection application and that the failure to provide a mechanism of appeal against a refusal of subsidiary protection  breaches the principal of equivalence in European Union law in that the procedure under the (Irish) 2006 Regulations is inferior to that provided for in national law (the Refugee Act 1996 as amended) in respect of decisions on claims for asylum.

The (injunction) application was rejected on the basis that it was only since the requirements of the Procedures Directive, and, in particular, the deeming provision of its Annex 1, became effective in Irish law (in 2007) that the recommendation of the Commissioner fell to be considered as the first instance determination by a “determining authority” with an appeal to the Refugee Appeals Tribunal. Thus, insofar as the provisions of the 1996 Act can now be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of appeal, it is only because of the manner in which the State has adapted the arrangements of the 1996 Act in order to comply with the requirements of the Procedures Directive for asylum (refugee) applications pursuant to Article 3.1. Furthermore, without a unified system for both applications the minimum procedural standards provide for in the Procedures Directive do not apply to a separate and discrete subsidiary protection application.

In relation to the ‘co-operation’ point the Court found that a claim of non-compliance with such a duty of “co-operation” or the principle audi alteram partem cannot be made as a purely academic point divorced from specific facts. The applicant in this case eschewed the need to identify any particular finding in the Subsidiary Protection determination which might have been corrected or altered had the applicant been consulted upon it.

Unlike the Procedures Directive, Article 4.1 of the Qualifications Directive refers to the duty of co-operation in respect of the “application for international protection,” that is, the claim to asylum and the claim to subsidiary protection. Article 14.2 of the Procedures Directive recognises, however, that the report of the personal interview with the applicant on which the decision of the determining authority on an asylum application is based, may be communicated to the asylum seeker after the decision has been adopted. The Court found that it would be inconsistent with these arrangements that the duty of cooperation in Article 4.1 should be construed as imposing on a determining authority a mandatory obligation to submit either the report or a draft decision in relation to a subsidiary protection application to an applicant for prior comment. Furthermore, the duty to co-operate provided for in Article 4.1only applies to those elements of the claim described in Article 4.2. These are, in effect, the basic facts and documents relating to the applicant’s personal history and to the basis of the claim and they are primarily considered and assessed in the asylum process including any appeal.

The Procedures Directive does not apply to subsidiary protection decisions when a Member State, such as Ireland, does not have a unified asylum procedure.