M v Minister for Justice and Equality Ireland and the Attorney General.
Date: 2017-02-09
22


Directive 2005/85 establishes minimum standards concerning the procedures for examining applications for international protection and specifies the rights of applicants for asylum. Article 3(1) and (3) of that directive states that it is to apply to applications for asylum which are examined both as applications on the basis of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)), and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83 (judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 26).
23


Accordingly, the Court has held that Directive 2005/85 applies to applications for subsidiary protection only where a Member State has established a single procedure, under which an application is examined by reference to both forms of international protection, namely asylum and subsidiary protection (judgment of 20 October 2016, Danqua, C‑429/15, EU:C:2016:789, paragraph 27).
25


That said, since the right to be heard forms an integral part of the rights of the defence, the observance of which constitutes a general principle of EU law, when the authorities of the Member States take measures which fall within the scope of EU law, they are, as a rule, subject to the obligation to observe the right to be heard enjoyed by addressees of decisions which significantly affect their interests, even where the applicable legislation does not expressly provide for such a procedural requirement (see, to that effect, judgments of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraphs 49 and 50, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraphs 39 and 40).
30


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).
31


The right to be heard guarantees the applicant for subsidiary protection the opportunity to put forward effectively, in the course of the administrative procedure, his views regarding his application for subsidiary protection and grounds that may give the competent authority reason to refrain from adopting an unfavourable decision (see, by analogy, judgments of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 54, and of 17 March 2016, Bensada Benallal, C‑161/15, EU:C:2016:175, paragraph 33).
32


Moreover, the right to be heard must allow that authority to investigate the matter in such a way that it adopts a decision in full knowledge of the facts, while taking account of all relevant factors, and to state reasons for that decision adequately, so that, where appropriate, the applicant can exercise his right of appeal (see, to that effect, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 49, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 59).
33


Furthermore, it is clear from the Court’s case-law that the question whether there is an infringement of the right to be heard must be examined in relation, inter alia, to the legal rules governing the matter concerned (see, to that effect, judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 34 and the case-law cited).
34


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).
36


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.
44


Accordingly, whilst an interview conducted during the asylum procedure is not, as such, sufficient to ensure observance of the applicant’s right to be heard in relation to his application for subsidiary protection (see, to that effect, judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 90), it is, however, possible for the competent authority to take into account, for the purpose of examining the application for subsidiary protection, certain information or material gathered at such an interview which contribute to its ability to determine that application with full knowledge of the facts.
46


Furthermore, it should be pointed out that, whilst arrangement of a fresh interview when the application for subsidiary protection is examined is capable of providing the applicant with an opportunity to add new material to that which he has already set out in writing, the right to be heard does not render it necessary for him to be offered that chance (see, to that effect, judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 71).
48


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).
54


In that regard, it should be pointed out, first, that such a right goes beyond the requirements which ordinarily arise from the right to be heard in administrative procedures (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 200) and, secondly, that the rules applicable to the examination of applications for subsidiary protection, in particular those laid down in Article 4 of Directive 2004/83, do not confer particular importance on testimony in order to assess the facts and the relevant circumstances.