(Reference for a preliminary ruling — Area of freedom, security and justice — Asylum policy — Common procedures for granting and withdrawing international protection — Directive 2013/32/EU — Articles 14 and 34 — Obligation to give applicants for international protection the opportunity of a personal interview before the adoption of a decision declaring the application to be inadmissible — Failure to comply with that obligation in the procedure at first instance — Consequences)
SOURCE: Court of Justice of the European Union, Annual report 2020
In the judgment in Addis, delivered on 16 July 2020, the Court held that Articles 14 and 34 of the Procedures Directive preclude legislation under which failure to comply with the obligation to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision declaring the application to be inadmissible on the ground that international protection has already been granted by another Member State does not lead to that decision being annulled and the case being remitted to the determining authority. According to the Court, it would be otherwise only where the applicant, in the appeal procedure against such a decision, has the opportunity to set out in person all of his or her arguments against the decision in a hearing which complies with the applicable conditions and fundamental guarantees set out in Article 15 of the directive, and those arguments are not capable of altering that decision.
In September 2011, the applicant in the main proceedings, who claimed to be an Eritrean national, entered Germany and applied for refugee status there. Since it was not, at first, possible to identify him on the basis of fingerprints owing to mutilation of his fingers, it was not until January 2013 that it became clear that the applicant in the main proceedings had previously obtained refugee status in Italy. By a decision of 18 February 2013, the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany; ‘the Office’), first, rejected as inadmissible the application for asylum submitted by the applicant in the main proceedings and, secondly, ordered his deportation to Italy. The action brought against that decision was dismissed at first instance. However, on appeal, the measure ordering deportation to Italy was annulled since it had not been established that the Italian Republic remained prepared to take back the applicant after the expiry on 5 February 2015 of the residence permit and travel document issued to him by the Italian authorities. The appeal was dismissed as to the remainder. The applicant in the main proceedings brought an appeal against that judgment before the Bundesverwaltungsgericht (Federal Administrative Court), claiming, inter alia, that the Office was not entitled to dispense with conducting a personal interview with him before it adopted the decision of 18 February 2013.
The Court stated, first, that the Procedures Directive sets out unequivocally the obligation to give an applicant for international protection the opportunity of a personal interview before a decision is taken on his or her application and that that obligation applies to decisions on the admissibility of the application as well as to decisions on substance.
The Court pointed out that, where the determining authority is inclined to find that an application for international protection is inadmissible on the ground that international protection has already been granted by another Member State, the personal interview on the admissibility of the application is intended particularly to give the applicant the opportunity to present all of the factors which differentiate his or her personal situation. That enables the determining authority to evaluate the applicant’s specific situation as well as the degree of his or her vulnerability, and to rule out the possibility that the applicant, if transferred to that other Member State, would be exposed to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter.
The Court noted, in that regard, that where the authorities of a Member State have available to them evidence produced by the applicant in order to establish the existence of such a risk in the Member State that has previously granted international protection, those authorities are required to assess, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights that is guaranteed by EU law, whether there are deficiencies which may be systematic or generalised, or which may affect certain groups of people. Furthermore, it cannot be entirely ruled out that an applicant for international protection may be able to demonstrate the existence of exceptional circumstances which are unique to him or her and which would mean that being sent back to the Member State which previously granted international protection would expose him or her, because of his or her particular vulnerability, to a risk of treatment that is contrary to Article 4 of the Charter.
Next, the Court noted that an exception to the rule requiring that a personal interview be conducted with the applicant on the admissibility of the application for international protection may be made only in the case of a subsequent application and that that was not the situation in that case.
Finally, as regards the legal consequences of a failure to comply with the obligation at issue to conduct a personal interview, the Court noted that, since the Procedures Directive does not expressly govern those legal consequences, they are governed by national law, provided that the principles of equivalence and effectiveness are observed. There was nothing before the Court capable of raising any doubts as to the compliance with the principle of equivalence of legislation such as that at issue in the main proceedings. The Court pointed out, as regards the principle of effectiveness, the fundamental importance which the EU legislature attaches to the personal interview in the asylum procedure, already at first instance, before the determining authority. In addition, it stated that the EU legislature attaches fundamental importance not only to such an interview being held, but also to the conditions under which that interview is to take place, in order to ensure that all applicants receive, depending on their gender and particular circumstances, appropriate procedural guarantees.
The Court held that, in those circumstances, it would be incompatible with the effectiveness of the Procedures Directive if the court or tribunal hearing the appeal were able to uphold a decision, which the determining authority adopted in breach of the obligation to give the applicant for international protection the opportunity of a personal interview, without itself conducting a hearing of the applicant in accordance with the conditions and fundamental guarantees applicable in the case in question. Without such a hearing, the applicant’s right to a personal interview under conditions which ensure appropriate confidentiality and allow the applicant to present the grounds for his or her application in a comprehensive manner would not be guaranteed at any stage of the asylum procedure.
The Court pointed out that the absence of a hearing cannot be compensated for by the opportunity that the applicant has in his or her appeal to set out in writing factors which call into question the validity of the decision declaring that his or her application for international protection is inadmissible, or by the obligation on the determining authority and on the court or tribunal hearing the appeal to investigate of its own motion all of the relevant facts. It stated that it was for the referring court to determine whether, in the procedure in the main proceedings, the opportunity was, or could still be, given to the applicant to be heard in full compliance with the applicable conditions and fundamental guarantees, in order to allow him to present his view in person and in a language with which he was familiar.