CJEU: Judgment on the consequences of a failure to conduct a personal interview prior to an inadmissibility decision

On 16 July 2020, the Court of Justice of the European Union published its judgment in Addis C-517/17 concerning the interpretation of the Procedures Directive and the consequences of a failure to conduct a personal interview prior to an inadmissibility decision.

The applicant, an Eritrean national, was granted leave to remain in Italy until 2015 after making a successful application for asylum in 2009. In 2011, they travelled to Germany and claimed refugee status, which was rejected as inadmissible on the basis that he had entered from a safe third country. At this point, the applicant did not have a personal interview to hear the arguments in relation to the new application. The referring court suspended proceedings and referred questions to the CJEU on the interpretation of the scope of exceptions to conducting a personal interview outlined in Directives 2005/85 and 2013/32. Advocate General Hogan delivered his opinion on 19 March 2020.

The Court observed that the referring court essentially seeks to ascertain whether the Procedures Directive must be interpreted as precluding national legislation under which a failure to grant an applicant for international protection (IP) the opportunity for a personal interview before an inadmissibility decision is made does not lead to that decision being annulled. The Court noted that Article 14(1) Procedures Directive, which unequivocally sets out the obligation to give an applicant for IP an interview, also applies to decisions on admissibility. This interview is intended to, inter alia, give the applicant an opportunity to present all the factors relating to their case and state that IP has been granted by another MS. The Court further notes, in light of its previous case law, that the Procedures Directive precludes a Member State from making an inadmissibility decision on the grounds that IP has been granted by another MS where, inter alia, the living conditions in that other MS would expose them to a real risk of inhuman and degrading treatment. It added, furthermore, that the threshold of Article 4 of the Charter is reached where the indifference of MS authorities would expose the applicant to extreme material poverty.

The Court later noted that where a MS has evidence to establish the existence of a risk in another MS which has granted an applicant international protection, the authorities are required to assess, inter alia, information which is objective, reliable and specific in relation to deficiencies in that MS. Moreover, it cannot be ruled out that an applicant would be able to provide evidence of the exceptional circumstances that would expose them to a risk of inhuman and degrading treatment. A personal interview is therefore of fundamental importance in assessing an individual’s degree of vulnerability and must be conducted, inter alia, with confidentiality and with a person capable of assessing the personal and general circumstances of the applicant.

The Court also noted that it is for the referring court to determine whether the applicant was or still could be given the opportunity to be heard in compliance with fundamental guarantees. If this cannot be guaranteed, the decision must be annulled and the case remitted to the determining authorities. It therefore concluded that Articles 14 and 34 of the Procedures Directive must be interpreted as precluding national legislation under which a failure to comply with the obligation to give an applicant the opportunity of a personal interview before the adoption of a inadmissibility decision does not lead to that decision being annulled and the case being remitted to the determining authority, unless the national legislation allows the applicant to set out in person all of their arguments against the decision in a hearing which complies with the applicable conditions and fundamental guarantees set out in Article 15 of that directive.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.