MM v Minister for Justice: Applicant for subsidiary protection had no right to an oral hearing

Following the second decision of the Court of Justice of the European Union in this case, MM v Minister for Justice and Equality, the Supreme Court overturned the High Court order quashing the Minister’s decision to refuse MM subsidiary protection. The Court held that the High Court erred in finding that MM had a right to an oral hearing in his application for subsidiary protection: a procedure based on written submissions is sufficient for the purposes of Council Directive 2004/83/EC.

 

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?

 

Decision

In its second decision, the CJEU held that:

The right to be heard, as applicable in the context of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, does not require, as a rule, that, where national legislation, such as that at issue in the main proceedings, provides for two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, 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.

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.

 

Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel. In it he outlined how “the difficulties of communication between different legal systems” [15] caused Hogan J in the High Court to equate the right to be heard in EU law (the right to present your side of the case) with the right to be heard under the Irish administrative law system [18] (the right to an oral hearing, etc).

On applying the decision of the CJEU to the facts of this case, O’Donnell J concluded:

in my view the outcome of the case is clear and straightforward. The decision of the European Court of Justice makes it clear that it in the Irish context which existed at the time of the decision here, and where the decision on subsidiary protection was a separate decision taken after the determination of the asylum process, it was permissible to make that decision on the basis of a written procedure, so long as the procedures adopted were sufficiently flexible to allow the applicant to make his case. That was plainly the case here. Exceptionally, it may be necessary to permit an oral interview. It cannot be contended here however that such an exceptional situation arose: the submission seeking subsidiary protection identified only those matters which had already been relied on in the claim for asylum. The decision of the ECJ also makes it clear that it is permissible to have regard to the information obtained in the asylum process, and the assessment of the decision-maker. There is in this case no basis for contending for an oral hearing, still less for an adversarial hearing. It was argued, faintly, that Irish law might require more in that procedure, but at this stage of the proceedings that argument is in my view as forlorn as a matter of procedure, as it is of substance. The appeal must be allowed and the order of certiorari made by the High Court must be set aside, and the application for judicial review dismissed.

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