Council Directive 2004/83/EC, the principle of effectiveness and the right to good administration did not preclude a national procedural rule, such as that at issue, under which an application for subsidiary protection could be considered only after an application for refugee status had been refused, provided that, first, it was possible to submit the application for refugee status and the application for subsidiary protection at the same time and, second, the national procedural rule did not give rise to a situation in which the application for subsidiary protection was considered only after an unreasonable length of time, which was a matter to be determined by the referring court.

The Court of Justice of the European Union so held on a request for a preliminary ruling from the Supreme Court (Ireland) in proceedings between the applicant, Mr N, a third-country national, and the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General concerning the minister’s refusal to consider the applicant’s application for subsidiary protection status on the basis that he had not previously submitted an application for refugee status.

The applicant entered Ireland on a student visa and after marrying an Irish national, was granted temporary permission to remain in Ireland. The minister informed the applicant that, first, his residence permit was not to be renewed since he was no longer living with his wife and that, second, he was considering making an order, pursuant to statutory powers, for his deportation. Subsequently, without having first submitted an asylum application, the applicant applied to the minister for consideration of his claim for subsidiary protection, his principal argument being that, while he did not fear persecution, he was afraid to return to his country of origin due to the risk of suffering “serious harm” within the meaning of article 15 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refuges or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L304, p 12). The minister informed the applicant that it was not possible to consider his application for subsidiary protection, stating that, under Irish law, the basis for making an application for subsidiary protection status was that the person applying had been refused refugee status. Following further attempts by the applicant to have his application considered, the minister repeated the reason for refusing to consider the application. The applicant commenced proceedings before the High Court for judicial review of the minister’s decision, arguing that the national legislation transposing Directive 2004/83 had to grant him the right to make an “autonomous” application for subsidiary protection. As that application for judicial review was refused, the applicant appealed to the Supreme Court, which referred to the Court of Justice a question on the interpretation of Directive 2004/83 for a preliminary ruling.

THE COURT (Fourth Chamber) held that a national procedural rule, such as that at issue, under which an application for subsidiary protection would be considered only after an application for refugee status had been refused, had to ensure that persons seeking subsidiary protection were actually in a position to avail themselves of the rights conferred on them by Directive 2004/83. The simple fact that an such an application could be considered only after a decision refusing refugee status had been given was not, in principle, likely to compromise the ability of applicants for subsidiary protection actually to avail themselves of the Directive’s rights. Nevertheless, the effect of legislation such as that at issue was that a third-country national seeking only subsidiary protection would necessarily be required to follow two separate procedural stages, while the introduction of a two-stage procedure for obtaining international protection risked extending the duration of the procedure and, accordingly, delaying the determination of the application for subsidiary protection. The requirement for genuine access to subsidiary protection status meant that, first, it should be possible to submit the application for refugee status and the application for subsidiary protection at the same time and, second, the application for subsidiary protection should be considered within a reasonable period of time, which was a matter to be determined by the national court. Account had to be taken of both of the duration of the examination of the application for refugee status culminating in the refusal of the application and the duration of the examination of the application for subsidiary protection. Moreover, where a member state implemented EU law, the requirements pertaining to the right to good administration, including the right of any person to have his or her affairs handled impartially and within a reasonable period of time, were applicable in a procedure for granting subsidiary protection. It was therefore necessary to ascertain whether the right to good administration precluded a member state from including in its national law a procedural rule to the effect that an application for subsidiary protection had to be covered by a separate procedure and could be made only after an asylum application had been refused. It followed that the procedural rule at issue was not at odds with the requirement of impartiality pertaining to the right to good administration, but nevertheless, that right ensured that the entire procedure for considering an application for international protection did not exceed a reasonable period of time, which was a matter to be determined by the referring court.