Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The CJEU referred in this judgment to the right to be heard. In the reasoning, it also referred to Articles 47 and 48 of the Charter.
Mr. M. applied for asylum in Ireland on 1 May 2008. His application for refugee status was rejected. Mr M. then submitted an application for subsidiary protection on 31 December 2008. That application was rejected by a decision of 24 September 2010. In his decision, the Irish authorites relied to a large extent on their earlier decision rejecting Mr M.’s asylum application.
On 6 January 2011 Mr. M appealed against the subsidiary protection decision before the High Court arguing that it did not comply with EU law, in particular with the right to defence since there was no oral hearing.
Whether the requirement to cooperate with an applicant (Art 4(1) of the Qualification Directive 2004/83) obliges the authorities of a Member State to supply an applicant for subsidiary protection (after the rejection of the application for refugee status) with the results of such an assessment before a negative decision is finally made so as to enable him or her to address those aspects of the proposed decision.
The Court answered in its operative part that “in the case of a system such as that established by the national legislation at issue […], a feature of which is that there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested”.
The Court, however, said that in general the provision of the Qualification Directive could not “be interpreted as meaning that the authority has 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”.
The Court held that in a system as in Ireland, “the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection”. The Court stressed that “when a Member State has chosen to establish two separate procedures, one following upon the other, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures” (para. 91)
In its reasoning the Court referred to “the right to be heard in all proceedings” which would be “now affirmed not only in Articles 47 and 48 of the Charter, which ensure respect of both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 thereof, which guarantees the right to good administration”. The Court specified that according to Art 41(2) CFREU the right to good administration would include “the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions”. The Court also stated that the provision was “of general application" and that the Court had “always affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person”. The observance of this right would be required “even where the applicable legislation does not expressly provide for such a procedural requirement”. The Court also stressed that the right to be heard “guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely" and that it requires “the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision; the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence. The Court concluded that “the right […] of the applicant for asylum to be heard must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System.
portunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely" and that it requires “the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision; the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence. The Court concluded that “the right […] of the applicant for asylum to be heard must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System."
Operative part:
"The requirement that the Member State concerned cooperate with an applicant for asylum, as stated in the second sentence of Article 4(1) of Council Directive 2004/83/EC […], cannot be interpreted as meaning that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is on that basis 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.
However, in the case of a system such as that established by the national legislation at issue in the main proceedings, a feature of which is that there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested. In such a system, the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection."
Reasoning:
3-5: references to text of Charter (Art 41, 47, 48(2), 51(1))
"8 All the Member States are contracting parties to the Geneva Convention and the 1967 Protocol. The European Union is not a contracting party to the Geneva Convention or to the 1967 Protocol, but Article 78(1) TFEU and Article 18 of the Charter provide that the right to asylum is to be guaranteed, inter alia, with due respect for the Geneva Convention and the 1967 Protocol.
13 Directives 2004/83 and 2005/85 state, in recitals 10 and 8 respectively, that they respect the fundamental rights and observe the principles recognised in particular by the Charter.
49 Thus, Mr M. argues, it is settled case‑law that, in all proceedings which are liable to culminate in an act adversely affecting a person, the right to be heard requires, as a general principle of EU law and even in the absence of specific legislation in that respect, that the person concerned be placed in a position in which he can effectively make known his views as regards the information on which the authorities intend to base their decision. That principle is now affirmed by the Charter.
82 In the present case, with regard more particularly to the right to be heard in all proceedings, which is inherent in that fundamental principle […], that right is now affirmed not only in Articles 47 and 48 of the Charter, which ensure respect of both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 thereof, which guarantees the right to good administration.
83 Article 41(2) of the Charter provides that the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions.
84 It must be stated that, as follows from its very wording, that provision is of general application.
85 Thus the Court has always affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person […].
86 In accordance with the Court’s case‑law, observance of that right is required even where the applicable legislation does not expressly provide for such a procedural requirement […].
87 The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely […].
88 That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision […]; the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence.
89 It follows from the foregoing reasoning that the right, thus understood, of the applicant for asylum to be heard must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System.
90 In that regard, the Court cannot accept the view put forward by the referring court and Ireland that, where – as in Ireland – an application for subsidiary protection is dealt with in a separate procedure, necessarily after the rejection of an asylum application upon conclusion of an examination in which the applicant has been heard, it is not necessary for the applicant to be heard again for the purpose of considering his application for subsidiary protection because the formality of a hearing in a sense replicates the hearing which he has already had in a largely similar context.
91 Rather, when a Member State has chosen to establish two separate procedures, one following upon the other, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures.
92 Furthermore, that interpretation is all the more justified in a situation such as that of the case in the main proceedings since, according to the information provided by the referring court itself, the competent national authority, when stating the grounds for its decision to reject the application for subsidiary protection, referred to a large extent to the reasons it had already relied on in support of its rejection of the asylum application, although, under Directive 2004/83, the conditions which must be fulfilled for the grant of refugee status and for the awarding of subsidiary protection status are different, as is the nature of the rights attaching to each of them.
93 It should be added that, according to the Court’s settled case‑law, the Member States must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation which would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law […].
94 It is in the light of that guidance as to the interpretation of EU law that it will be for the referring court to determine whether the procedure followed in the examination of Mr M.’s application for subsidiary protection was compatible with the requirements of EU law and, should it find that Mr M.’s right to be heard was infringed, to draw all the necessary inferences therefrom."
"Court of Justice gives judgment on Irish procedure for determining claims for Subsidiary Protection" by Shauna Gillan, available at: http://eulawanalysis.blogspot.com/2017/02/court-of-justice-gives-judgment-on.html
Qualification Directive 2004/83/EC
The application of the EU Charter of Fundamental Rights to asylum procedural law
An Introduction to the Common European Asylum System for Courts and Tribunals. A Judicial Analysis
Handbook on European law relating to asylum, borders and immigration