Opinion of the Advocate General — ECLI:EU:C:2016:320
Date: 2016-05-03
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Third Chamber), 9 February 2017 1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — National legislation establishing two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection — Obligation to ensure that a person has the right to be heard in each of those procedures (Council Directive 2004/83, Art. 4(1)) 2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — National legislation establishing two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection — Right to be heard when the application for subsidiary protection is examined — Scope (Council Directive 2004/83, Art. 4(1)) 1. See the text of the decision. (see para. 26) 2. 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. First, it does not follow from what the Court held in the judgment of 22 November 2012, M. (C‑277/11, EU:C:2012:744), that an interview must necessarily be arranged in the procedure relating to the grant of subsidiary protection. Secondly, it is to be pointed out that, in the absence of EU rules governing the matter that are applicable in Ireland, it is for the domestic legal system of that Member State to lay down the detailed procedural rules relating to examination of an application for subsidiary protection, Ireland being responsible for ensuring, in that context, that the rights conferred by the legal order of the European Union are effectively protected and, in particular, for ensuring compliance with the right of the applicant for subsidiary protection to be heard (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 65). It follows that the detailed rules under which applicants for subsidiary protection are to be able to exercise their right to be heard prior to the adoption of a final decision on their application must be assessed in the light of the provisions of Directive 2004/83, which are intended, inter alia, to lay down minimum standards relating to the conditions which third country nationals must satisfy in order to be entitled to subsidiary protection (see, by analogy, judgments of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 55, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 45). For that purpose, it is apparent from Article 4 of Directive 2004/83 that the elements which the competent authority must take into account include statements and documentation regarding the applicant’s age, background, identity, nationality or nationalities, countries of previous residence, previous asylum applications, travel routes and reasons for applying and, more broadly, the serious harm to which he has been or may be subject. Where necessary, the competent authority must also take account of the explanation provided regarding a lack of relevant elements, and of the applicant’s general credibility. Therefore, the right to be heard before the adoption of a decision on an application for subsidiary protection must allow the applicant to set out his views on all those elements, in order to substantiate his application and to allow the authorities to carry out the individual assessment of the facts and circumstances that is provided for in Article 4 of Directive 2004/83 with full knowledge thereof, with a view to determining whether there would be a real risk of the applicant suffering serious harm, within the meaning of the directive, if he were returned to his country of origin. If, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it follows from Article 4(1) of Directive 2004/83 that the Member State concerned must actively cooperate with the applicant so that all the elements enabling his application to be assessed may be assembled (see, to that effect, judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 66). Therefore, an interview must be arranged if the competent authority is not objectively in a position — on the basis of the elements available to it following the written procedure and the interview with the applicant conducted when his asylum application was examined — to determine with full knowledge of the facts whether substantial grounds have been shown for believing that, if returned to his country of origin, he would face a real risk of suffering serious harm, and whether he is unable, or, owing to such risk, unwilling, to avail himself of the protection of that country. An interview must also be arranged if it is apparent — in the light of the personal or general circumstances in which the application for subsidiary protection has been made, in particular any specific vulnerability of the applicant, due for example to his age, his state of health or the fact that he has been subjected to serious forms of violence — that one is necessary in order to allow him to comment in full and coherently on the elements capable of substantiating that application. (see paras 28, 30, 34, 36, 37, 48, 49, 51, 56, 57, operative part)