Opinion of Advocate General Szpunar delivered on 16 February 2023.
|16 February 2023
|Court of Justice (European Union)
OPINION OF ADVOCATE GENERAL
delivered on 16 February 2023 (1)
International Protection Appeals Tribunal,
Minister for Justice and Equality,
(Request for a preliminary ruling from the High Court, Ireland)
(Reference for a preliminary ruling – Conditions for granting refugee status – Application for subsidiary protection – Assessment of applications for international protection – Duty of the Member State to cooperate with the applicant – Scope – Judicial review – Scope – Reasonable time to take a decision – Disregard – Consequences – General credibility of an applicant – Assessment criteria)
2. The request has been made in the context of an appeal brought by the applicant in the main proceedings, X, a third-country national, against the decision of the International Protection Appeals Tribunal (Ireland) (‘the IPAT’), by which it dismissed his appeals against the decisions rejecting his applications for asylum and for subsidiary protection. The dispute is between the applicant in the main proceedings and the IPAT, the Minister for Justice and Equality (Ireland), Ireland and the Attorney General (Ireland) (together, ‘the respondents’).
3. The High Court (Ireland) raises seven questions for a preliminary ruling which are structured around three issues: first, the scope of the duty of the determining authority to cooperate with the applicant for international protection and the consequences of a possible breach of that duty; second, the consequences of failure to take a decision on applications for asylum and for international protection within a reasonable period of time; and, third, the impact on the general credibility of an applicant of a false statement made in his or her application initially, which the applicant subsequently retracted at the first opportunity after having explained himself or herself.
II. Legal framework
A. International law
4. Under the first subparagraph of Article 1(A)(2) of the Convention relating to the Status of Refugees, (4) the term ‘refugee’ is to apply to any person who, ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’.
B. European Union law
5. In addition to certain provisions of primary law, namely Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 4 and Article 15(c) of Directive 2004/83 (5) and Article 8(2) and (3), Article 23(1) and (2) and Article 39(1)(a) of Directive 2005/85 (6) are relevant to the present case.
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
6. The applicant in the main proceedings is a Pakistani national who entered Ireland on 1 July 2015 after residing in the United Kingdom from 2011 to 2015 without making an application for international protection.
7. On 2 July 2015, the applicant in the main proceedings lodged an application for refugee status in Ireland. That application, initially based on a false statement which the applicant in the main proceedings subsequently retracted, was founded on the fact that he had been in the immediate vicinity of a bomb explosion in a terrorist attack which took place during a funeral in Pakistan and killed around 40 people, including two people known to him. The applicant claimed to have been deeply affected by that event, with the result that he was afraid to live in Pakistan and feared serious harm if he were sent back. He stated that he suffered from anxiety, depression and sleep disorders. His application was rejected on 14 November 2016 by the Office of the Refugee Applications Commissioner (Ireland).
8. On 2 December 2016, the applicant in the main proceedings brought an appeal against that decision before the Refugee Appeals Tribunal (Ireland). The proceedings relating to that appeal were suspended on account of legislative amendments made on 31 December 2016 as a result of the entry into force of the International Protection Act 2015 which unified the various international protection procedures previously laid down and created, in particular, the International Protection Office (‘the IPO’) and the IPAT.
9. On 13 March 2017, the applicant in the main proceedings lodged an application for subsidiary protection, which was rejected by the IPO on 29 February 2018. On 13 February 2018, he brought an appeal against that decision before the IPAT.
10. By decision of 7 February 2019, the IPAT dismissed both appeals.
11. On 7 April 2019, the applicant in the main proceedings brought an appeal before the High Court seeking annulment of that decision of the IPAT.
12. In support of that action, the applicant in the main proceedings submitted, first, that the country of origin information consulted by the IPAT, dating from 2015 to 2017, was incomplete and out of date, with the result that the IPAT did not take account of the situation prevailing in Pakistan at the time when the decision of 7 February 2019 was adopted. Moreover, the applicant in the main proceedings states that the IPAT did not properly examine the information available to it.
13. Second, the applicant in the main proceedings submits that the time taken to rule on the application of 2 July 2015 is manifestly unreasonable and infringes the principle of effectiveness, Article 47 of the Charter and the minimum standards established by EU law.
14. Third, the applicant in the main proceedings submits that the IPAT was informed of the state of his mental health, but failed to ensure that it had before it all the necessary evidence in order to be able to adjudicate correctly on the applications. In particular, the applicant states that the IPAT ought to have requested an expert medical opinion, referred to as a medico-legal report, which is generally used to support the asylum application of a person who has been subjected to acts of torture, or even another expert’s report on the state of his mental health.
15. Fourth, in respect of other elements relevant to his application, the applicant in the main proceedings states that he was not given the benefit of the doubt, even though the state of his mental health had not been duly established and taken into consideration. Thus, he argues that a number of elements relevant to his claim were not verified or were disregarded and there was no cooperation between himself and the competent institutions, in particular with regard to that medico-legal report.
16. Fifth, in the circumstances of the case, which are characterised by the fact that the applicant in the main proceedings has admitted that his earlier account of events was false and that there is a possibility that he is suffering from mental health problems, the applicant in the main proceedings argues that it is unreasonable to conclude that he is not credible as regards essential aspects of his claim.
17. The High Court found, first of all, that the IPAT had failed in its duty to cooperate in that it had not obtained adequate information on the country of origin or a medico-legal report. However, it questions whether the IPAT was required under EU law to obtain such a report and whether it is compatible with EU law to require, in accordance with national law, the applicant in the main proceedings to establish, in order to have the IPAT’s decision annulled, that harm resulted from that failure.
18. That court then asks what consequences it should draw from the fact that more than three and a half years elapsed between the submission of the application on 2 July 2015 and the adoption of the IPAT’s decision on 7 February 2019, a decision-making period which it considers to be unreasonable.
19. Finally, the referring court has doubts as to whether a single false statement, which the applicant in the main proceedings retracted at the first opportunity after having explained himself, may justify calling into question his general credibility.
20. It was in that context that, by decision of 23 November 2021, received at the Court Registry on 9 December 2021, the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) In circumstances where there has been a complete breach of the duty of cooperation as described at paragraph 66 of [the judgment in M., (7)] in an applicant’s application for subsidiary protection, has the consideration of that application been rendered “totally ineffective” in the sense considered in [the judgment in Commission v Germany]? [(8)]
(2) If the answer to [the first question] is positive, should the aforesaid breach of the duty of cooperation, without more, entitle an applicant to annulment of the decision?
(3) If the answer to [the second question] is in the negative, then and if applicable, on whom does the onus lie to establish that the refusal decision might have been different had there been proper cooperation by the decision maker?
(4) Should the failure to provide a decision on an applicant’s application for international protection within a reasonable time entitle an applicant to annulment of a decision when issued?
(5) Does the time taken in effecting […] change to the applicable asylum protection framework within a Member State operate to excuse that Member State from operating an international protection scheme, which would have provided a decision on such...
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