The CJEU recently gave judgement arising out of a question which was referred to it by the Irish Supreme Court regarding the right to an oral hearing and cross examination of witnesses by an applicant seeking subsidiary protection. The CJEU found in light of the two tiered system operated by Ireland a stand alone right to an oral hearing and calling of witnesses did not automatically exist as part of the examination for subsidiary protection. However, the CJEU stressed that the right to be heard was an important general principle of EU law. When making a decision that significantly affects a person’s interests the State must ensure that their right to input into that decision is facilitated. As such the CJEU found that there may be circumstances in which an oral hearing was appropriate and necessary: “An interview must nonetheless be arranged where specific circumstances, relating to the elements available to the competent authority or to the personal or general circumstances in which the application for subsidiary protection has been made, render it necessary in order to examine that application with full knowledge of the facts, a matter which is for the referring court to establish”.
The preliminary reference arose out of litigation which was initiated in January 2011 by a Rwandan national (‘M’). In May 2008 M, a law graduate, made an asylum application to Ireland. Following the interview process M’s claim was rejected in August 2008. M subsequently appealed to the Refugee Appeals Tribunal but was refused in October 2008. The first instance decision-maker invoked a provision in Irish law that denied him an oral appeal. This was based on the fact that on he had delayed in making his asylum claim. M consequently lodged a claim for subsidiary protection however at that time, the Irish system prevented individuals from simultaneously claiming asylum and subsidiary protection. At that time a person had to wait for a determination in an asylum claim before applying for subsidiary protection.
The CJEU noted in particular than unlike decisions relating to asylum claims it was the Minister for Justice to decide all claims for subsidiary protection. Furthermore, no personal interviews were carried out for subsidiary protection claims, and there was also no right of appeal. On 30 September 2010 M received his notice of rejection in writing. The delay of close to two years was not uncommon at that time. The Minister’s decision relied largely on the two earlier decisions that had rejected M’s claim for asylum.
The Irish system has undergone significant changes throughout the timeline of M’s case, consequently the CJEU’s findings have been rendered somewhat moot. On 31 December 2016 a new procedure for international protection claims was brought into force via the commencement of relevant sections of the International Protection Act 2015. Ireland has now adopted a single procedure for the assessment of asylum and subsidiary protection claims. However the case speaks to a fundamental principle of EU law that of the right to be heard in matters that significantly affect one’s interests.
A copy of the judgment is available here.
Further commentary is available here.