Ireland: follow-up to the MM case (C-277/11): the absence of single procedure for asylum and subsidiary protection called into question by Irish highest courts

Friday, October 4, 2013

In the MM judgment (C-277/11, reported in the Weekly Legal Update issue of 23 November 2012), the CJEU ruled that, where a State chooses to establish two separate procedures for examining asylum applications and applications for subsidiary protection, an applicant who has applied for subsidiary protection after the rejection of his asylum claim must be granted a fresh hearing in this second procedure where his views must be duly taken into account. Following the indications provided by the CJEU in that judgment, the Irish High Court continued the national proceedings and issued a decision in January this year (2013 IEHC 9, MM v Minister of Justice & Anor) in which it quashed the Irish Minister of Justice's refusal to grant subsidiary protection to the applicant. The Minister relied on the adverse credibility findings made by the Refugee Appeals Tribunal with respect to his asylum application, and he failed to make an independent and separate adjudication of Mr. MM's claims.

The High Court adopts the CJEU's stance according to which subsidiary protection in the Irish bi-furcated system must be evaluated separately and distinctly from the determination of the asylum procedure. As a consequence, when adjudicating on subsidiary protection applications, the Minister of Justice must decide without any reliance on the prior reasoning contained in the asylum application, at least in the absence of an effective hearing where the applicant was given an opportunity to revise the issues grounding the rejection of the application. The High Court does not interpret the CJEU's judgment as meaning that an oral hearing would be routinely required at subsidiary protection stage. However, it points out that there may be circumstances where a separate oral hearing would be required if adverse credibility findings were made. In this respect, an effective hearing, at a minimum, would involve a procedure whereby (i) the applicant was invited to comment on any adverse credibility findings made by the Refugee Appeals Tribunal (ii) the applicant was given a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection and (iii) involve a completely fresh assessment of the applicant's credibility in circumstances where the mere fact that the Tribunal had ruled adversely to this question would not in itself suffice and would not even be directly relevant to this fresh credibility assessment.

The High Court finally notes that this judgment, and that of the CJEU in the MM case, are likely to have far-reaching consequences for the practical administration of the subsidiary protection scheme as operated to date and that the Irish Parliament may wish to consider this question, bearing in mind that other Member States operate a single integrated system combining asylum and subsidiary protection.

Find the full text of the judgement of the High Court here.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.



Assessment of facts and circumstances
Credibility assessment
Subsidiary Protection
Personal interview
Procedural guarantees