Advocate General Opinion in case C-604/12, H.N., 7 November 2013

Wednesday, November 13, 2013

(Common European asylum system – Directive 2004/83/EC – Minimum standards for qualification for refugee status or subsidiary protection status – Directive 2005/85/EC – Minimum standards on procedures in Member States for granting and withdrawing refugee status – National procedural rule making the consideration of an application for subsidiary protection subject to the prior refusal of an application for refugee status – Whether permissible – Respect for the right to good administration – Expedition and impartiality of the examination procedure)

Facts of the case

Mr N., a Pakistani citizen living in Ireland, upon separation from his Irish ex-wife, sought to resist his deportation to Pakistan. He claims that he does not seek asylum because he doesn't fear persecution on a protected ground. He does however claim that he risks suffering serious harm if returned to Pakistan, in particular because of the indiscriminate violence occurring in the Swat Valley, where his family lives. He decided to apply for subsidiary protection, but not refugee status. Whereas most Member States adopt a single procedure for both forms of international protection, Ireland operates two distinct and separate procedures. An application for subsidiary protection may be made in Ireland only when the procedure for the grant of refugee status has been exhausted. Mr N. challenges this rule on the basis of incompatibility with the Qualification Directive and the principle of good administration (Article 41 of the Charter).

Question referred for a preliminary ruling

Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental Rights of the European Union, permit a Member State, to provide in its law that an application for subsidiary protection status can be considered only if the Applicant has applied for and been refused refugee status in accordance with national law?

Consideration of the question referred

Advocate General (AG) Bot's position is that, 'in the context of the examination procedure for an asylum application, the principle of good administration must, above all, ensure that the need of international protection is correctly ascertained, which calls for exhaustive assessment of the application in the light of the two forms of international protection' [12]. The AG therefore argues that the requirement to previously undergo an application for refugee status ensures that 'a person who is legitimately seeking international protection is granted the appropriate status and effective access to the rights conferred on him by Directive 2004/83, on the basis of an examination consistent with the spirit and the letter of the instruments governing the common European asylum system' [12].

In reaching this decision, the AG emphasised that 'this prior examination [of refugee status eligibility] would not appear to be the source of the excessive delays in the procedure for, according to the information available to me, the delay occurs more at the stage of the examination of the application for subsidiary protection' [71]. On this basis, the AG did not regard an exclusion of the prior requirement as 'warranted by any saving of time. On the contrary, that examination is necessary in order to ensure that rights are guaranteed and in full' [71]. The AG therefore concluded that EU law, and the principle of good administration in particular, 'must be interpreted as not precluding a national procedural rule that makes the consideration of an application for subsidiary protection subject to the prior refusal of an application for refugee status' [82].

Read the full Opinion of AG Bot.

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Effective access to procedures
Effective remedy (right to)
Subsidiary Protection