Case C‑429/15

Evelyn Danqua

v

Minister for Justice and Equality and Others

(Request for a preliminary ruling from the Court of Appeal)

(Reference for a preliminary ruling — Directive 2004/83/EC — Minimum standards for granting refugee status or subsidiary protection status — National procedural rule laying down, for the submission of an application for subsidiary protection, a period of 15 working days from notification of the rejection of the application for asylum — Procedural autonomy of the Member States — Principle of equivalence — Principle of effectiveness — Proper conduct of the procedure for examining the application for subsidiary protection — Proper conduct of the return procedure — Not compatible)

Summary — Judgment of the Court (Third Chamber), 20 October 2016

1.        EU law — Rights conferred on individuals — National rules of procedure — Conditions under which applicable — Observance of the principles of equivalence and effectiveness — National procedural rule laying down, for the submission of an application for subsidiary protection, a period of 15 working days from notification of the rejection of the application for asylum — Invocation of the principle of equivalence irrelevant

(Council Directives 2004/83 and 2005/85)

2.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant points of EU law — Reformulation of the questions

(Art. 267 TFEU)

3.        Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — National procedural rule laying down, for the submission of an application for subsidiary protection, a period of 15 working days from notification of the rejection of the application for asylum — Not permissible — Not compatible with the principle of effectiveness

(Council Directive 2004/83)

1.      In a reference for a preliminary ruling relating to the question whether the principle of equivalence must be interpreted as precluding a national procedural rule which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that the applicant whose asylum application has been rejected may make an application for subsidiary protection, invoking the principle of equivalence is irrelevant.

Observance of the principle of equivalence requires that a national rule be applied without distinction to procedures based on EU law and those based on national law.

However, the situation underlying the question referred for a preliminary ruling concerns two applications based on EU law, namely an application for refugee status and an application for subsidiary protection status.

(see paras 24, 30, 32, 35)

2.      See the text of the decision.

(see paras 36, 37)

3.      The principle of effectiveness must be interpreted as precluding a national procedural rule which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that an applicant whose asylum application has been rejected may make an application for subsidiary protection.

Under the principle of effectiveness, such a national procedural rule must ensure that persons applying for subsidiary protection are actually in a position to avail themselves of the rights conferred on them by Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. In that regard, the procedure for examining applications for subsidiary protection is of particular importance inasmuch as it enables applicants for international protection to safeguard their most basic rights by the grant of such protection.

In that context, taking account of the difficulties such applicants may face because of, inter alia, the difficult human and material situation in which they may find themselves, such a time limit is particularly short and does not ensure, in practice, that all those applicants are afforded a genuine opportunity to submit an application for subsidiary protection and, where appropriate, to be granted subsidiary protection status. Therefore, such a time limit cannot reasonably be justified for the purposes of ensuring the proper conduct of the procedure for examining an application for that status.

Accordingly, the national procedural rule at issue is capable of compromising the ability of applicants for subsidiary protection actually to avail themselves of the rights conferred on them by Directive 2004/83.

(see paras 39, 45, 46, 48, 49, operative part)