MM v MJELR: does the right to be heard in EU law mean the right to an oral hearing?

imagesOn the 7th of November, the Court issued a motion that it would seek a preliminary ruling under Article 267 of the TFEU. The question posed is, does an applicant’s right to be heard under EU law, when making an application for subsidiary protection, guarantee a right to an oral hearing?

Background

MM made an unsuccessful application for refugee status. He then made an application for subsidiary protection as derived from EU law. The Minister refused that application also. MM sought judicial review of that decision on procedural grounds, claiming that the Minister ought to have informed him of the results of a negative assessment before a final decision, to allow him to make a submission on the negative findings. The High Court requested a preliminary ruling from the European Court of Justice (ECJ) on that issue. The ECJ held that there was no requirement on the Minister to inform an applicant of an adverse assessment and allow him to make a submission on that. However, the ECJ did state that an applicant for subsidiary protection has a right to be heard and make his views known as part of that application. The fact that he has been duly heard during the refugee application does not dispense with that procedural requirement.

On receipt of the ECJ decision, the High Court determined that the Minister failed to provide MM with an effective hearing, as he had relied completely on the Refugee Appeals Tribunal’s (Tribunal) findings and made no independent and separate adjudication on MM’s grounds for application. In its judgment, the High Court set the minimum criteria for MM’s subsidiary protection application: 1) MM to have an opportunity to comment on the Tribunal’s adverse findings; 2) to be given a fresh opportunity to revisit all matters relating to his claim for subsidiary protection; and, 3) to have a fresh assessment of his credibility.

The Minister appealed that decision to the Supreme Court claiming that the High Court erred in determining that his adjudication process was not compatible with the ECJ ruling. MM cross appealed claiming that the High Court erred in not finding that the right to be heard means a right to an oral hearing and to cross examine witnesses. The Court referred a question to the ECJ on that matter.

Question

1. Does the “right to be heard” in European Union law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC, be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?

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