By Steve Peers
The initial Common European Asylum System (CEAS) legislation defined ‘subsidiary protection,’ which protects individuals ineligible for refugee status but shouldn’t be returned to their home country. However, other initial CEAS legislation, particularly the asylum procedures Directive, didn’t cover those seeking subsidiary protection or clarify the connection between refugee and subsidiary protection statuses.
This gap has been addressed in several ways. Firstly, future second-phase CEAS legislation fully applies to subsidiary protection applicants and defines the relationship between refugee and subsidiary protection statuses. However, some of this legislation, notably the Directive on international protection procedures (replacing the asylum procedures Directive), won’t apply until applications made after July 2015.
Secondly, many Member States use a ‘one-stop shop’ procedure, evaluating subsidiary protection applications alongside refugee protection applications. Here, the asylum procedures Directive applies to the entire process.
Thirdly, in Member States without this procedure, the CJEU in the M judgment determined that the general EU law principle of the ‘right to good administration’ (Article 41 of the EU Charter of Fundamental Rights) applies to national subsidiary protection claim assessments, even though the Charter limits this right to EU bodies, not national administrations.
The recent judgment in HN raises more questions about subsidiary protection claim procedures in Member States without a ‘one-stop shop’ and has broader implications. Like the M case, HN involves a subsidiary protection application in Ireland. Irish law mandates separate procedures for assessing refugee and subsidiary protection statuses, resolving the former before the latter. Mr. HN, believing he wouldn’t receive refugee status but had a strong case for subsidiary protection, argued that these rules violated EU law.
The CJEU disagreed. Firstly, given the Geneva Convention’s emphasis on refugee status in Treaties and secondary EU law, subsidiary protection is ‘intended for third country nationals who do not qualify for refugee status’. Consequently, ‘an application for subsidiary protection should not, in principle, be considered before’ an authority rejects an application for refugee status. Therefore, this aspect of national law wasn’t flawed.
The CJEU also examined two EU law aspects: effectiveness and the right to good administration. Regarding effectiveness, while Member States have some leeway in regulating the subsidiary protection process without a ‘one-stop shop,’ this discretion is limited. Since a two-step process causes delays, applying for both statuses simultaneously must be possible, with the subsidiary protection claim considered ‘within a reasonable period,’ factoring in the time spent on the refugee claim.
Concerning good administration, the CJEU confirmed that Article 41 of the Charter applies to national proceedings connected to EU law. Here, the relevant provisions were impartial decisions and decisions within a reasonable time. The ‘reasonable time’ rule mirrors the effectiveness principle. Additionally, the impartiality principle wasn’t breached simply because the applicant, due to his unsuccessful refugee claim, was informed of potential deportation before the subsidiary protection decision.
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This ruling has several broader implications. Firstly, confirming that Article 41 of the Charter applies to all national proceedings under EU law is significant beyond asylum law, given national administrations’ large role in implementing EU law. This finding could be relevant for immigration, free movement, or tax decisions, among others.
Secondly, while the judgment focuses on impartial decisions and decisions within a reasonable time, other Article 41 aspects must apply equally to national administrative decisions linked to EU law. In the M judgment, the CJEU already mentioned the right to be heard. Article 41 also covers fair administration, file access, reasoned decisions, damages rights, and linguistic communication rights.
For asylum law, the judgment logically means Article 47 of the Charter (right to a court and effective remedy) also applies to subsidiary protection claims by analogy, even in Member States without a one-stop shop. Arguably, the EU Charter’s rights to dignity and social protection apply to subsidiary protection applicants in such Member States.
The Court’s reasoning in M and HN is relevant by analogy to cases where individuals seek refugee or subsidiary protection in Member States from outside EU territory, such as after interception at sea. While the asylum procedures Directive doesn’t apply outside EU territory, the qualification Directive has no such geographic limit. Logically, the latter applies to claims made outside EU territory to Member States, and the Charter applies to procedural rights in such cases.
The Court’s approach to the relationship between refugee and subsidiary protection applications will make it tougher for applicants to avoid the EU’s ‘Dublin’ asylum case allocation rules by withdrawing a refugee application while simultaneously submitting or maintaining a subsidiary protection application. However, this is only relevant to applications before 2014, as the Dublin III Regulation, extending ‘Dublin’ rules to subsidiary protection, applies from that date onward.
Regarding the relationship between refugee status and purely national forms of protection outside the qualification Directive, the ruling doesn’t address their relationship with the Directive or other EU asylum law (like Dublin rules). It’s still arguable, for instance, that Dublin rules don’t apply if someone solely seeks national protection. Conversely, one might argue that the HN judgment applies by analogy if a Member State grants an applicant for refugee and/or subsidiary protection a less advantageous national status without considering the former claims on their merits.
It’s clear that a refugee status claim must always be rejected before considering subsidiary protection. This applies even before the second-phase procedures Directive codifies it, impacting applications before July 2015, including pending ones. A Member State granting subsidiary protection without assessing a refugee application’s merits could be required to reopen the process. However, further case law might be needed to clarify situations where someone appeals a refugee status rejection while the subsidiary protection claim is ongoing.
Lastly, although the UK and Ireland opted into only the first-phase qualification and procedures Directives, some key second-phase rules still bind them due to the CJEU’s interpretation of first-phase rules. Specifically, they must follow basic procedural rules for subsidiary protection applications; consider refugee claims before subsidiary protection claims; and decide within a reasonable time frame (though less precise than the second-phase Directive’s time limits). Therefore, a rule’s presence in the second-phase but not the first-phase law doesn’t automatically exclude the UK and Ireland; the first-phase legislation might implicitly contain it. This highlights the legal complexities of the EU law opt-out system.
Barnard & Peers: chapter 8, chapter 26