Adequate Legal Protection and Good Administration in EU Asylum Procedures: H.N. and beyond

The current European situation is marked by an ongoing migration crisis. On a daily basis we are informed of the ever-increasing number of migrants trying to reach Europe’s border – too often with fatal results. The European Court ofJustice, once described as “tucked away in the fairyland Duchy ofLuxembourg”, is today faced with difficult legal questions concerning EU asylum law – the present case being an example thereof.At first glance, H.N.appears uncontroversial. The judgment is short,delivered in fifty-eight brief paragraphs by the fourth chamber and answers aseemingly straightforward question raised by the Irish Supreme Court:whether Directive 2004/83 – which establishes minimum standards for thequalification and status of third country nationals or stateless persons as refugees or as persons in need of subsidiary protection– permits a MemberState to stipulate in its national law that consideration of an application for subsidiary protection status can only be made if the applicant has first applied for and been refused refugee status. This question is clearly a procedural one, which the ECJ traditionally sees as part of national procedural autonomy tempered only by the obligation to comply with the principles of equivalence and effectiveness and the need to ensure respect for fundamental rights. What we see in this case, however, is an unprecedented reliance on the principle of effectiveness in intervening in national procedural autonomy to secure good administration – a fundamental right enshrined in Article 41 of the EU Charter of Fundamental Right. As such, H.N.is a groundbreaking case with regard to its application of the principle of effectiveness and the right to good administration in constraining the Member States’ procedural autonomy to organize the processing of applications for international protectio.