BKC Solicitors | European Law

EU Law impacts all areas of economic and business activity from the free movement of goods to telecommunications, from customs to distribution agreements. A comprehensive knowledge of the rights and obligations arising from EU Law is crucial to advising clients and we have extensive experience in this important area of practice. This firm has acted in many High Court cases that have resulted in references to the European Court of Justice. Burns Kelly Corrigan Solicitors represented two of the applicants in the land mark European Case 127/08 Metock and others v Minister for Justice, Equality and Law Reform, judgment of 25 July 2008.

This case was the result of a reference to the European Court of Justice from the High Court and it involved the following:
Citizenship and free movement of persons – right of residence of spouses of Community citizens The Court provides clarification of the conditions and limits applicable to the right of residence of spouses of Community citizens. Four nationals of non-member countries – who had initially unsuccessfully applied for political asylum in Ireland and then married EU citizens who were not Irish nationals but who resided in Ireland – had their applications for residence cards as spouses of Union citizens refused by the Minister for Justice on the ground that they did not satisfy the condition of prior lawful residence in another Member State laid down in Irish law. Those refusals formed the subject-matter of actions for annulment before the High Court which, after finding that none of the marriages in question was a marriage of convenience, referred to the Court of Justice questions for a preliminary ruling on the interpretation of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States in order to establish whether the Directive precludes legislation of a Member State which makes the right of residence of a national of a non-member country subject to the conditions of prior lawful residence in another Member States and acquisition of the status of spouse of a citizen of the Union before his/her arrival in the host Member State. Relying on several provisions of Directive 2004/38/EC, as well as on its earlier case-law concerning the free movement of persons, the Court determined that the Directive does not make its application conditional on the beneficiaries, family members of a citizen of the Union, having previously resided in a Member State. In so doing, the Court explicitly reversed its findings in the judgment in Akrich (Case C- 109/01), in which it accepted that the possibility was open to Member States to lay down such a condition, and reverted to its case-law prior to that judgment. In addition, the Court pointed out that its interpretation is consistent with the division of competences between the Community – which legislates on matters relating to the free movement of Community citizens and their family members – and the Member States – from whom the Directive does not deprive all possibility of controlling the entry into their territory of family members of Union citizens. Pursuant to the provisions of Chapter VI of the Directive, Member States may restrict the right of entry and residence of Union citizens and their family members on grounds of public policy, public security or public health. Under Article 35 of the Directive, they may also take measures to penalise those concerned in the case of abuse of rights or fraud. Finally, the Court stated that the provisions of the Directive should be interpreted in a non-restrictive way such that it does not require either that the Union citizen has founded his/her family before exercising his/her right of free movement in another Member State or that the national of a non-member country has entered the host Member State before becoming a family member of citizen of the Union. In other words, in the view of the Court, a national of a non-member country, the spouse of a Union citizen, who accompanies that citizen to or joins that citizen in the host Member State, may enjoy rights conferred by that directive irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

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BKC Solicitors also represented the applicant in the land mark European Case CJEU judgment in Case C-277/1, M.M. v Minister for Justice, Equality and Law Reform, Ireland, 22 November 2012.

Summary of the issues involved:
(Reference for a preliminary ruling – Common European Asylum System – Directive 2004/83/EC – Minimum standards for qualification for refugee status or subsidiary protection status – Article 4(1), second sentence – Cooperation of the Member State with the applicant to assess the relevant elements of his application – Scope – Lawfulness of the national procedure for processing an application for subsidiary protection following rejection of an application for refugee status – Observance of fundamental rights – Right to be heard)

Referred Questions:
In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of Directive 2004/83 require the administrative authorities of the Member State in question to supply such applicant with the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?

The question referred for a preliminary ruling
The CJEU found that there is no such obligation under the duty of co-operation in Art. 4; an examination of the merits of an asylum application is solely the responsibility of the competent national authority (para 70). However the Court then addressed the broader question of the right to be heard in the course of the examination of his subsidiary protection application. The Court stated that the observance of the rights of the defence is a fundamental principle of EU law, and that it is affirmed not only in Articles 47 and 48 of the Charter, but also in Article 41, which guarantees the right to good administration. (para 81 and 82). In accordance with the Court’s case-law, observance of that right is required even where the applicable legislation does not expressly provide for such a procedural requirement (para 86).

The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision, the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence. Therefore, the right of the applicant for asylum to be heard must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System.

The Court cannot accept the view that, where an application for subsidiary protection is dealt with in a separate procedure […], it is not necessary for the applicant to be heard again […] Rather, when a Member State has chosen to establish two separate procedures, for examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures.

The Court (First Chamber) ruled:
The requirement that the Member State concerned cooperate with an applicant for asylum, as stated in the second sentence of Article 4(1) 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 refugees or as persons who otherwise need international protection and the content of the protection granted, cannot be interpreted as meaning that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is on that basis obliged before adopting its decision to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard.

However, in the case of a system such as that established by the national legislation at issue in the main proceedings, a feature of which is that there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested. In such a system, the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection

Because of this judgment the Irish government has been forced to introduce a new law regarding subsidiary protection in response to the judgment of the High Court in January 2013. A new system for the processing of subsidiary protection applications was introduced and following same a subsidiary protection applicant is now entitled to an oral hearing and if they are refused they are entitled to an oral appeal.

For the full judgment please visit: CURIA: Case C-277/11 M.M.
BKC Solicitors also represent applicants in relation to European Arrest Warrants.
In the EU, “extradition” is by means of the European Arrest Warrant (EAW). Any member state may issue an EAW and request its execution in any other member state. Very serious problems can arise in the system. The EAW system is professedly based on the high regard that the national judiciaries have for each other.

For more information or advice on this area please contact us on (01) 497 6877 or alternatively fill out the Enquiry Form. We will be more than happy to discuss your legal queries and advise you on how we can help.